Dell’s CLOUD COMPUTING Trademark: Misappropriating a Common Term Used In the Industry or Brilliant, Proactive Brand Development?

The computing industry is upset that Dell has applied for the trademark CLOUD COMPUTING.  People cry the mark is generic, has been used in the industry for years, and should not be the sole property of Dell.  Unfortunately, these cries are coming after the mark has successfully made it through the opposition period and appears headed for registration.  Moreover, it is not entirely clear whether or not such arguments will ultimately be successful.

Dell’s spokesman said: "The intent is to protect our intellectual property in our growing cloud computing business," Frink said. "Our intent is not to stop others from using the term."  However, this could be problematic since allowing others to use a trademark in relation to the same or similar goods or services, in this case “the design of computer hardware for use in data centers and mega-scale computing environments for others; customization of computer hardware for use in data centers and mega-scale computing environments for others,” weakens, if not destroys, one’s trademark rights.  So, what is Dell to do?  They obviously want the mark, but are they willing to fight for it?

While some feel what Dell is attempting to do is wrong, there is something to do be said for the company taking affirmative steps to create, establish rights in, and likely protect a brand.  All is not lost, however, for those who vehemently oppose (at least now since everyone failed to oppose it during the opposition period) Dell’s exclusive rights to the mark in connection with the services listed in the application.  A petition to cancel the mark is a viable, and likely, option.  Dell will have all the presumptions that come with a trademark registered with the USPTO, but arguments regarding the genericness or mere descriptiveness as well as other prior uses of the mark so as to cause consumer confusion can be made.

Regardless, this illustrates the power of a trademark.  If a trademark has no value, noone would care.  Companies and individuals alike need to recognize how valuable a trademark, or brand for that matter, truly is.

Comments

[Dell Attorney Doesn't Understand Trademark Law]

How can the Dell lawyer say they aren't going to stop others from using the mark? That is the whole point of trademark law. If others use the term to identify the source and origin of goods and services, then there are no trademark rights. Trademarks must identify a single source of origin.