Trademark insanity

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It's bad enough that we have to deal with struggles over the use of trademarks that have become generic terms, like "Xerox" and "Coke", and trademarks that were already generic terms among specialists, such as "Windows", but a new low in trademarking has been reached by the joint efforts of Dell and the US Patent and Trademark Office. Cyndy Aleo-Carreira reports that Dell has applied for a trademark on the term "cloud computing". The opposition period has already passed and a notice of allowance has been issued. That means that it is very likely that the application will soon receive final approval.

The term "cloud computing" refers to a model in which computer services are provided in a distributed manner over a network to users who do not necessarily know anything about the technology or the way in which resources are distributed. Search engines like Google are an example: when you run a search, the work is divided up among multiple machines without you being aware of it or playing any role in the assignment, and many people use Google's resources at the same time. In the computing world, it is a generic term with no association with a particular company or technology. Aleo-Carreira found examples in the mainstream press as early as 2001, in this New York Times article. It appears that Dell itself did not use the term in press releases or discussions with journalists prior to 2007.

In other words, this is a pure example of theft from the public domain. Speakers of English have a term, "cloud computing", which the US government is on the verge of privatizing and assigning exclusively to Dell. Other companies providing similar services will not be able to describe what they are doing as "cloud computing" any more than Nike is able to describe its shoes as Reeboks. In theory a system exists for preventing such abuses: the USPTO ought to have staff who are knowledgeable enough in their respective fields to recognize such generic terms. Moreover, in theory members of the public can notify the USPTO of problems during the opposition period. It is increasingly apparent, however, that USPTO is either unable or unwilling to do its job, and that the public opposition process is really only useful in detecting excessive similarity to existing trademarks: only trademark specialists have the time to check the Trademark Gazette regularly, or the $1,536 per year it takes to subscribe to the printed version.

I'm beginning to think that non-arbitrary trademarks (those that are real words or phrases, as opposed to artificial creations such as "Google" and "Viagra"), should be abolished lest greedy corporations enclose too much of our linguistic commons.

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23 Comments »

  1. JAK said,

    August 3, 2008 @ 4:05 am

    I have never heard the term “Could Computing” being used or advertised as being coined by Dell. I work in the IT industry, and its a part of my job to know about the new developments in this space.

    In my opinion, I think Dell is only trying to cash in on the buzz around “Cloud Computing” by doing this. They would be better served if they invested more in terms of the actual technology rather such tricks. The competitors are pushing ahead with better offerings, and Dell wasting their time on such frivolous claims are only losing their focus.

    Also, if the laws around trademarking are so vague, maybe its time for the government to revamp them. I would support any law that would restrict companies from trademarking generic English terms and phrases.

  2. Peter said,

    August 3, 2008 @ 6:07 am

    Well, I think the best defence here is attack. If we all continue to use "cloud computing" to refer to the general, rather than to the Dell specific, this will make Dell's actions moot. I use my sony photocopier to xerox papers, my dyson vacuum-cleaner to hoover the carpet, and my leica camera to capture kodak moments.

  3. Adrian said,

    August 3, 2008 @ 7:54 am

    That should be "… any more than Nike is …"

  4. Jan Schreuder said,

    August 3, 2008 @ 11:53 am

    I am always struck by the fact that most countries that favor free-trade, also insist upon trademarks, copyrights and patents, without apparently recognizing the contradiction. Whatever the implications of trademarks and patents, they clearly constitute a form of protectionism.

  5. Flooey said,

    August 3, 2008 @ 12:59 pm

    I actually feel that non-arbitrary trademarks in general are fine, and I don't think most people have any complaints about Target stores or Chevron gasoline (at least in terms of trademarks). Those kinds of things don't cause problems. Trademarking terms that already are meaningful in the domain of the trademark doesn't make any sense, though.

    I also think most people support the core purpose of trademarks, which is protecting the consumer. Abolishing them in general would just make it impossible to reliably tell who is providing a particular item, which is bad news all around. I don't think that trademarking something like "cloud computing" furthers that purpose at all, though, because the term already has a meaning, so it won't actually communicate anything associated with Dell anywhere that it appears.

  6. vista iso » [News] Dell Poisons the Trademarks System: ‘Steals’ from Public Domain said,

    August 3, 2008 @ 1:19 pm

    [...] Domain —–BEGIN PGP SIGNED MESSAGE—– Hash: SHA1 Trademark Insanity ,—-[ Quote ] `—- [link] It's not just the patent system that's becoming a joke. The politicians are too easily [...]

  7. ben said,

    August 3, 2008 @ 1:33 pm

    Hmm… I think I'll trademark "linguist" just to irritate Dr. Poser. Or maybe "Doctor."

    I am always struck by the fact that most countries that favor free-trade, also insist upon trademarks, copyrights and patents, without apparently recognizing the contradiction.

    Well, that's true because, in a command economy, the government owns everything so there are no disputes over trademarks or patents or any of that.

    Protectionism is a specific thing: it's where one nation's government protects its tax-revenue generating industries from competition by industries in another nation. Sometimes a government will subsidize or protect one industry over another, call it what you want (corporate welfare?), but it's not protectionism per se. Incidentally, the biggest way the government goes after certain businesses over others is by simple regulation: big corporations can afford to abide by regulations when small businesses can't. That's why many corporations will lobby for more regulations and protectionism.

    The notions of intellectual property arose because people ran into some basic problems. For example, if I'm running a business, how am I supposed to operate if someone can open up shop down the street under the same name? Copyright and others all have similar stories. If you want to argue that copyright for the lifetime of the author is silly or that patents are abused, don't bother, you're preaching to the choir. But the basic premise is very much conducive to a free market.

  8. Bill Poser said,

    August 3, 2008 @ 1:51 pm

    Flooey,

    I was being hyperbolic in suggesting the abolition of all non-arbitrary trademarks, but the question is, given the shamelessness of companies like Dell and the failure of USPTO to filter out illegitimate trademarks, how can we prevent companies from privatizing generic terms in the field?

  9. dr pepper said,

    August 3, 2008 @ 2:00 pm

    I've long thought that we need to create a new category of felony: False Claim of Intellectual Property Rights, for which principals can be jailed and lawyers sanctioned.

  10. Mark A. Mandel said,

    August 3, 2008 @ 2:01 pm

    Link posted on my LJ. Some of my readers are libertarians, some are lawyers, though most are neither. Anyway, I think they'll be interested.

  11. Joe said,

    August 3, 2008 @ 2:04 pm

    > I'm beginning to think that non-arbitrary trademarks (those that are real words or phrases, as opposed to artificial creations such as "Google" and "Viagra"), should be abolished lest greedy corporations enclose too much of our linguistic commons.

    Hyperbolic or not, I agree completely with this. Fair use of trademarks ought to be expanded a bit, too. Too often, they act as if they control every utterance of the word (e.g. if someone tries to make a website like "dell-sucks.com"). Last I knew, they tend to lose those lawsuits, but they ought to be recognized as frivolous and punished accordingly.

    As to what Peter said about "attacking," the downside of that is that you'll get nastygrams from their lawyers about "diluting" their trademark by not recognizing it. And to be fair to them, even with arbitrary trademarks, I still "google" things all the time…

  12. Jon Weinberg said,

    August 3, 2008 @ 6:23 pm

    The way the system is "supposed" to work is that the trademark professionals at other large computer companies monitor the Trademark Gazette and file oppositions to this sort of thing; the system failed here. If the trademark does issue, anybody who wants to pay for the lawyering can move to cancel it, and once that happens cancellation seems almost guaranteed.

  13. Sili said,

    August 3, 2008 @ 6:39 pm

    I'm reminded of Larry Lessig's TED talk about, inter alia, intellectual property.

    This is a blatant example of the sort of situation that breeds contempt for the law.

  14. Dell trying to trademark “cloud computing” said,

    August 3, 2008 @ 7:03 pm

    [...] Poser notes in a post (Trademark Insanity) on Language Log that Dell as applied for a trademark on the term "cloud computing". [...]

  15. Jessica said,

    August 3, 2008 @ 7:51 pm

    My guess is that what happened here is that Dell merely lucked out and sneaked the application past an examiner at the PTO who was asleep at the wheel. They described their goods and services in their application very precisely (see here: http://tarr.uspto.gov/servlet/tarr?regser=serial&entry=77139082) and not merely as a definition of the term. It's quite possible that the application could be rejected later when Dell actually submits proof of use, if the use is generic or descriptive. I've been aware of the term "cloud" in this field for nearly ten years; if I had a client that was concerned about using the term "cloud computing" to describe what it's doing, I'd show them the the results of a Google search and say go for it. Dell's securing a registration won't put the generic cat back in the bag.

  16. TootsNYC said,

    August 3, 2008 @ 8:55 pm

    I noticed this weekend, while dining at my local Jackson Hole burger joint, that their burger menu has Santa Fe ™–how can you possibly trademark the name of a city?

    There are "disclaimers"–there's a S'mores ™ candy bar, but that company cannot restrict the use of the term anywhere but in the actual name of a candy bar. You can have S'mores cereal, and you can use it in a generic term everywhere else (as a flavor of granola bar, and maybe even as a flavor of another candy bar that is not actually *named* S'mores)

    I don't have time to seek out these sorts of abuses, but in this world of blogs, I keep thinking surely there's someone already plugged into the trademark world who could alert us. And I'd be willing to be part of any letter-writing campaign anyone else began!

    And I actually am a fan of protecting trademarks–I'm not in favor of xeroxing; we can use "photocopying" or simply "copying." I don't want to buy a leica–I'd rather buy a Canon. And I think a company like Sony ought to get all the financial benefits that spring from having invented the Walkman–both in product and in name.

    But once a term *starts out* in the public domain, Then I don't think companies should be able to steal them.

  17. Boycott Novell » IRC: #boycottnovell @ FreeNode: August 3rd, 2008 said,

    August 4, 2008 @ 5:33 am

    [...] It seems to turn out that IP, not just patent law, is  madness. http://williampatry.blogspot.c… http://languagelog.ldc.upenn.edu/n… [...]

  18. Dan T. said,

    August 4, 2008 @ 2:39 pm

    DC and Marvel Comics did a similar thing years ago when they obtained a joint trademark on the name "Super Hero", even though that had been used for decades as a generic term for the genre.

  19. Stephen Jones said,

    August 5, 2008 @ 6:48 am

    The USPTO is inoperative. Patent law protects lawyers, and the patent office is basically a rubber stamp.

  20. David Scrimshaw said,

    August 5, 2008 @ 1:25 pm

    I just had a look through Part 1 of the latest issue of Canada's Trademark Journal and I see that the Dave Allen company is trademarking "Getting Things Done" here in Canada for a range of products and services including wallets, office furniture, DVDs, seminars and workshops.

    Another check on the Library of Congress database turns up 12 "Getting Things Done" works published before Dave Allen's 2001 book.

    I have nothing against Mr. Allen's productivity methods, but I feel uncomfortable about his method being the only one that can be associated with getting things done.

  21. » Language Log » Trademark Insanity Writer River said,

    August 5, 2008 @ 6:35 pm

    [...] Language Log » Trademark Insanity. I'm beginning to think that non-arbitrary trademarks (those that are real words or phrases, as opposed to artificial creations such as "Google" and "Viagra"), should be abolished lest greedy corporations enclose too much of our linguistic commons. [...]

  22. Steve Laniel said,

    August 11, 2008 @ 9:50 am

    'The U.S. Patent and Trademark Office has reversed course on its earlier move to grant Dell trademark rights to the term "cloud computing." Dell received a preliminary notice on July 8 saying it could have the trademark, but it was withdrawn on Thursday. '

    http://news.cnet.com/8301-13578_3-10011577-38.html?hhTest=1

  23. No Trademark for Cloud Computing | ScienceLogic said,

    August 14, 2008 @ 4:01 pm

    [...] Dell was in the final stages of being granted a trademark on "Cloud Computing" – shocking and amusing pretty much everyone except for possibly Dell employees. But apparently the US Patent and Trademark [...]

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