Thursday, August 7, 2008

USPTO reconsiders Dell trademark, bloggers rejoice!

Internet News (among many others) reports that the USPTO has gone back on its decision to allow Dell Computers to register "Cloud Computing" as a trademark for a line of server products.

Dell submitted a registration application in March of 2007 and was given the go-ahead by the USPTO in late July of 2008. On Tuesday, the USPTO canceled the Notice of Allowance, effectively reversing their decision that the trademark was valid.

Most of the coverage of this issue has been via bloggers, bemoaning what they see as a trend towards allowing companies to get intellectual property protection (patents and trademarks, specifically) for things (inventions or phrases) that are commonly in use or just plain obvious. It's fascinating stuff, and I'd recommend following this link to read all about it.

I'd rather not voice my opinion on such matters in this space. Instead, I'd like to highlight some of the opportunities for learning about trademarks that this story presents, which I've done in easy-to-digest bullet points below:

  • Public opinion does count in trademark registration, although it's unusual for the USPTO to take back a permitted mark. Trademark applications are published, as are patent applications, for public scrutiny every week in the Trademark Official Gazette. (Published patent applications are available online as well.) Generally speaking, the time to speak up about a trademark application that you don't like is any time up to 30 days following publication. My guess would be that the intense media scrutiny caused the USPTO to reconsider.
  • Even if the mark were registered, it could be challenged in court. The consensus seems to be that using the term "cloud" as a metaphor for the internet is pretty common knowledge. If Dell's registration would have gone through and somebody would have challenged it in court, a judge may have decided that the trademark was too obvious, in which case it would have been thrown out. It happens every so often that a brand name becomes so thoroughly adopted in popular language that its trademark no longer identifies the provider of the good or service, but only the service, and the company loses its mark. That's how in 1950 "Escalator" became "escalator."
  • You can track the status of a trademark registration online. It's in the best interest of the USPTO to make trademark applications as accessible as possible -- every potential mark that is contested before registration is a mark that won't show up in the courts later on down the road. You can track the whole lifespan of a trademark registration online at the USPTO website using TARR, Trademark Application and Registration Retrieval.

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