Can Dell trademark the cloud?

Dell‘s (NASDAQ: DELL) trademark of the ubiquitous, commonly used term “cloud computing” is one of those eyebrow-raising events that immediately begs the question: How is that possible?

The simple answer is that Dell is proving that it is possible; the firm’s in nearly the final stretch of the U.S. Patent and Trademark Office approval process.

David Frink, a Dell spokesman, defends the effort, noting that in the year since it applied for its the “cloud computing” trademark, no one has heretofore opposed it.

“The intent is to protect our intellectual property in our growing cloud computing business,” said David Frink, a Dell spokesman. “Our intent is not to stop others from using the term.”

The trademark was applied for at about the same time that Dell created the Dell Cloud Computing Solutions unit. It is the creation of that business that’s the genesis of Dell’s trademark, said Frink. The 2007 press release announcing the unit includes a trademark symbol on the name.

Frink said the trademark would not prevent others in the industry from using the term, except in the “narrow” definition it seeks, he said. That definition, in the trademark application, describes “the design of computer hardware for use in data centres and mega-scale computing environments for others; customization of computer hardware for use in data centres and mega-scale computing environments for others.”

Pointing out that the definition Dell provided doesn’t sound narrow, Frink went back to the point that company that its trademark has not been opposed.

Dell’s application for the “cloud computing” trademark appears didn’t get media attention until recently. The uproar may have been triggered by a post on a Google Groups cloud computing forum.

Whatever caused the controversy, it’s late in the game. Dell’s “cloud computing” trademark is in the trademark office’s Notice of Allowance phase, nearly the final step. Once Dell shows that it is using this term, it will receive a Certificate of Registration.

That registration doesn’t preclude further action by others. Third parties “can still petition to cancel the registration on the ground that the mark is merely descriptive,” said Peter S. Sloane, an attorney at Ostrolenk Faber, LLP, an intellectual property law firm in New York, in an e-mail.

Sloan points out that Wikipedia defines cloud computing “as a ‘style’ of computing and a ‘general concept.’ “These definitions,” he says, “are not consistent with any claim to exclusivity of the term as a trademark.”

Joe Englander, an intellectual property attorney at Shutts & Bowen LLP in Fort Lauderdale, Fla., also sees challenges ahead for the trademark. The term cloud computing is “generic” for computers that are connected to the Internet, he said.

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