Not Every Cloud: Dell Patent Failure

August 19, 2008

The US Patent and Trademark Office (USPTO) has refused to allow Dell Inc. to trade mark the term ‘cloud computing’. This follows a series of objections recently made in the media by rivals who claimed the term had become too generic to warrant trade mark protection.

The trade mark application was filed in March 2007 to protect Dell’s Cloud Computing Solutions, for which the USPTO initially issued a ‘notice of allowance’ in July 2008. That met with almost instant objection and the application was then referred back for examination almost a month later, before being turned down by the Office. 

Mike Lynd, intellectual property expert and Partner at Marks & Clerk, the patent and trade mark attorneys, commented on the ruling:
It is no surprise that Dell’s trade mark application was turned down by the USPTO. In a case such as this, it would be difficult to convince the Office that cloud computing is anything but generic in an appeal. Had this trade mark been allowed, it would have given Dell a monopoly over a term clearly in descriptive use. What is surprising, however, is how long it has taken for this application to be rejected. The concept of reaching into an internet ‘cloud’ for services instead of installing traditional applications on a PC could refer to almost any dotcom software. Google’s programs are frequently described in this manner. If Dell wishes to protect its particular cloud computing solution it needs to give it a distinctive brand name and trade mark instead.

Apparently Dell’s attempt to trade mark the term cloud computing was fraught with difficulty from the start. The application was originally turned down by the USPTO on the basis of its similarity to an existing mark registered by software company CloudSource Inc., and the potential this may cause for confusion. The CloudSource trade mark was subsequently cancelled and Dell’s application allowed to proceed.
Mike Lynd added ‘The CloudSource trade mark offers an example of the kind of branding Dell could now adopt for its own cloud computing services. It could brand its solutions to make clear that they are based on cloud computing technology without laying claim to the process itself.’