It seems that in the world of branding and trade-marks the Internet is turning into a genuine Wild West. This truth becomes evident upon reading Steve Lohr’s article in the New York Times, as it addresses fundamental trademark issues arising in an increasingly Internet-saturated society.[1] These trends are primarily related to the development of new internet technologies, most notably “cloud computing” [2] and “mesh” [3] services.
Although only in their developmental stages, companies are already trying to place their stamp on these burgeoning communication technologies. Dell was recently denied the registration of the phrase “cloud computing” by the United States Patent and Trademarks Office, while Microsoft is in the process of attaining a trademark for its mesh networking services, tentatively called “Live Mesh.” Dell’s denial resulted from complaints by industry professionals that “cloud computing” was a broadly descriptive term, not associated with any particular company.[4] A successful application would have resulted in an absurd result akin to one company retaining a trademark to “clothes.” So the question becomes: where should the line be drawn on establishing trademarks for these sorts of cutting edge business products?
The answer to this question must ultimately take into account the volatile and amorphous nature of the Internet. When companies are utilizing technological jargon to market admittedly intangible products, the requirements of the Trade-Marks Act [5] suddenly become significantly more difficult to operate within.
Thus the Internet “trade” is, to a large extent, left to police itself (as was the case with Dell’s application). Industry professionals must educate regulatory officials on what is the “common understanding” [6] of their field, with the ultimate goal of avoiding any unfair competition that might result from one company aggressively staking out a claim to a generally descriptive term (something the Act is meant to counteract). But this state of affairs cannot be considered entirely satisfactory, as policy is being determined by the whims of businesses with the resources to monitor all applications and challenge them when they see fit.
As educational and commercial institutions find themselves ever more dependent on the networking capabilities of the Internet, it is crucial that government be proactive in ensuring fair marketing practices. Perhaps the best means of achieving this would be to reform the Act such that it has provisions specifically targeted for Internet-related applications. While this might appear overzealous initially, the fact remains that Internet is a boundless arena for business activity, and innovation can be so complex as to defy proper comprehension.
The Act must be a bulwark against aggressive tactics which are simply attempts at monopoly couched in the framework of a Trade-mark application. To achieve this end, the Act would have to place a demanding onus on companies seeking Trade-Marks for Internet communication technologies. These companies would have to delineate (clearly) what type of service is being represented by the mark, draw evidence as to common industry understandings, and explain how their mark is sufficiently distinctive.
[1] http://www.nytimes.com/2008/09/01/technology/01copyright.html
[2] http://en.wikipedia.org/wiki/Cloud_computing
[3] http://en.wikipedia.org/wiki/Mesh_networking
[4] See note 1.
[5] For brevity, referred to as “the Act”.
[6] See note 1.