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Cloud Trademarks

Trend Micro abandons Intercloud™ trademark application

Just when I thought we were going to be looking at another trademark debacle not unlike Dell’s attempt at “cloud computing” back in 2008 (see Dell cloud computing™ denied) it seems luck is with us in that Trend Micro have abandoned their application #77018125 for a trademark on the term Intercloud (see NewsFlash: Trend Micro trademarks the Intercloud™). They had until 5 February 2010 to file for an extension and according to USPTO’s Trademark Document Retrieval system they have now well and truly missed the date (the last extension was submitted at the 11th hour, at 6pm on the eve of expiry).

Like Dell, Trend Micro were issued a “Notice of Allowance” on 5 August 2008 (actually Dell’s “Notice of Allowance” for #77139082 was issued less than a month before, on 8 July 2008, and cancelled just afterwards, on 7 August 2008). Unlike Dell though, Trend Micro just happened to be in the right place at the right time rather than attempting to lay claim to an existing, rapidly developing technology term (“cloud computing”).

Having been issued a Notice of Allowance both companies just had to submit a Statement of Use and the trademarks were theirs. With Dell it was just lucky that I happened to discover and reveal their application during this brief window (after which the USPTO cancelled their application following widespread uproar), but with Trend Micro it’s likely they don’t actually have a product today with which to use the trademark.

A similar thing happened to Psion late 2008, who couldn’t believe their luck when the term “netbook” became popular long after they had discontinued their product line by the same name. Having realised they still held an active trademark, they threatened all and sundry over it, eventually claiming Intel had “unclean hands” and asking for $1.2bn, only to back down when push came to shove. One could argue that as we have “submarine patents“, we also have “submarine trademarks”.

In this case, back on September 25, 2006 Trend Micro announced a product coincidentally called “InterCloud” (see Trend Micro Takes Unprecedented Approach to Eliminating Botnet Threats with the Unveiling of InterCloud Security Service), which they claimed was “the industry’s most advanced solution for identifying botnet activity and offering customers the ability to quarantine and optionally clean bot-infected PCs“. Today’s Intercloud is a global cloud of clouds, in the same way that the Internet is a global network of networks – clearly nothing like what Trend Micro had in mind. It’s also both descriptive (a portmanteau describing interconnected clouds) and generic (in that it cannot serve as a source identifier for a given product or service), which basically means it should be found ineligible for trademark protection should anyone apply again in future.

Explaining further, the Internet has kept us busy for a few decades simply by passing packets between clients and servers (most of the time). It’s analogous to the bare electricity grid, allowing connected nodes to transfer electrical energy between one another (typically from generators to consumers but with alternative energy sometimes consumers are generators too). Cloud computing is like adding massive, centralised power stations to the electricity grid, essentially giving it a life of its own.

I like the term Intercloud, mainly because it takes the focus away from the question of “What is cloud?”, instead drawing attention to interoperability and standards where it belongs. Kudos to Trend Micro for this [in]action – whether intentional or unintentional.

By Sam Johnston

Sam Johnston CMgr FIML GAICD MACS Snr CP is an Australian technology executive and serial entrepreneur with over 20 years experience founding and advising startups, and in leadership roles at top global technology companies including Citrix, Google, and Equinix.

Sam is currently the director of labs at DXC Technology, whose mission is to ensure the company is fully equipped with the emerging digital technologies it needs to lead clients through accelerating change, including drones, robotics & humanoids, 3D printing, computer vision & voice, augmented & virtual reality, artificial intelligence & machine learning, blockchain, chatbots, and quantum computing.

Sam has a bachelor of computer science degree from the University of New South Wales, and is based in Singapore, having worked in Australia, Asia, Europe, and the USA.