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Edit3: GoFundMe for the legal costs of one of their targets: https://www.gofundme.com/f/legal-defense-to-fight-backcountr...
Edit2: A follow-up article with more details on just how predatory and unreasonable BC (by proxy through their attorneys) have become: https://coloradosun.com/2019/11/05/backcountry-com-trademark...
Edit, @skierjerry, et, al, here's what I just sent my rep:
Heya <person>,
I read an article about Backcountry in the Colorado Sun that really disappointed me. Your employer has adopted ugly business tactics and begun using its size to attack smaller businesses who have the ubiquitous term “backcountry” in their name.
Please look at my lifetime spend with Backcountry as well as that of my wife. It is significant. It also stops now, and I’ll be making significant contributions to the legal funds of the boutique makes and businesses that your employer is assaulting.
I wish you nothing but the best on a personal level and hope that your employer chooses to take a better path."
After the Denver Post was acquired by Alden Global Capital, the paper's hedge fund owner,they laid of 1/3 of newsroom staff to maintain a profit margin on the property in the 20 percent range.
Several of those laid off (and some volunteered to migrate), they formed the Colorado Sun, which is online-only and does actual deep investigations locally. It's probably still hard and the money isn't easy, but its better than what we had!
The Editor is the Boulder Daily Camera fell on his sword quite spectacularly over it...
https://boulderfreepress.blog/2018/04/14/private-equity-owne...
Don't forget, Black Diamond laid off much of the Utah engineering staff and their climbing cams will now be made in China... Not sure what other gear is taking that fate. Looks like it's Metolious Master Cams for me now.
Answering my own question: looks like it. They brought it back in 2015 and are going back overseas in 2019.
https://www.outsideonline.com/2400138/black-diamond-layoffs-...
https://companyweek.com/articles/as-black-diamond-bolts-to-c...
They broke on my first really long hike. 1/3 of the way into a 72 mile route..
I'm not sure if I see what's wrong with that. Like it or not, electronics manufacturing is centered around China and the APAC region. Trying to set up manufacturing outside that region, especially for a company that doesn't specialize in electronic goods, simply doesn't make sense.
The thing that really pisses me off is that they are attacking people in business because they love the sport. These boutique makers are often just scraping by and don't have the margins to sustain much resistance at all.
I buy essentially all my gear from the REI co-op, who seem to have both customer-friendly return policies as well as genuine commitments to environmental standards for the gear they stock.
This is a commonly repeated myth. The circumstances in which you could even possibly lose control of a trademark in this way (genericization, abandonment) are very narrow and difficult to apply. For more context, try https://www.eff.org/deeplinks/2013/11/trademark-law-does-not...
And yet, every month there is a story like this in the news of "big company with generic name sues small company with same name" because nobody likes a bully. The problem is, if they DO NOT attack, the trademark claim will become severely diluted and then THEY will become vulnerable to a trademark dispute from someone else down the line, and the other party will point to their lack of historical defense and make an argument that the claim on the trademark is weak.
Should be:
"I wish you nothing but the best on a personal level and hope that your employer swiftly goes out of business and leads to reform of trademark laws."
I had actually been following those Marquette Backcountry Skis thinking some day I might get some. This makes me want them more.
Thanks for your feedback!
Think what you may, but if there is ever a time to use the phrase that you shouldn’t believe everything you read on the internet its now. Its being handled correctly, and not displayed honestly.
We will be releasing a statement today or tomorrow regarding the issue. We haven’t said anything due to confidentiality agreements, that other parties violated but anyways. I respect your opinion and decision.
Let me know what I can help with gear-wise in the meantime,
Also the accuracy of your claim has already been debunked fairly well elsewhere in the thread.
That being said, the fundamental purpose of trademarks is to eliminate consumer confusion. In order to defend against a challenge, you would need to present to the court strong evidence that there is very little chance a consumer might be confused as to the maker or origin of the goods due to the name. For instance, if you made a line of frozen pizzas and called them 'backcountry style' pizzas, is there a chance that some consumers might think those pizzas were made by Backcountry.com? You've got to be able to show that this is not a likely scenario even if Backcountry.com starts manufacturing frozen foods (assuming the trademark covers frozen foods, I have no idea if it does, but it wouldn't surprise me if it did).
I developed a website for reserving parking near airports and seaports years ago and the site launched under the name BookParkFly.com. Shortly thereafter, the business (I was just a contracted web developer) received a letter from a lawyer representing the people who owned a sorta-similar trademark in the same space for a company called, if I remember correctly, Park 'N Fly. I personally thought we might have been able to win a challenge in court, but the company didn't want to fight it so changed the name and rebranded everything. (It's Book2Park now if you're curious, but I severed ties with them years ago. Before they were featured on Krebs after getting someone else to slap in an insecure Wordpress blog after I told them if Wordpress was going to be used it had to be watched closely for security concerns...)
Trademark challenges aren't "bullying" or "aggressive". They're basic law 101 and really shouldn't surprise anyone in business. That's why you pay an attorney to do a trademark search if you really want to use a certain name.
That doesn’t mean the trademark will hold up under a challenge. But a challenge takes time and money, and a recurring theme in this story (and many like it) is that one party is way bigger and richer than the other. For a small business, it’s generally going to be way cheaper to just change their name than to take on a federal court case against a national company backed by private equity—even if they think they would win.
A system like this would keep frivolous lawsuits to a minimum.
It's just as well, because Microsoft came out with something shortly after that had the same name. Definitely not someone you want to do battle with.
google became the term after the name gained popularity, base camp, back country, and such, were terms of activities or places long before someone decided it was a brand.
* edit : the two that stick out in my mind as brands establishing association with the product regardless of who made it would be xerox and Kleenex. In some parts of the world Coke is synonymous with soda.
[1] https://slate.com/news-and-politics/2002/02/can-you-trademar...
Have you never heard of, for example, Facebook?
Compare that to "what is backcountry" and I think you'll see the difference.
T-Mobile says it owns exclusive rights to the color magenta
https://adage.com/article/digital/t-mobile-says-it-owns-excl...
Everything about that seems like a bad idea.
It's one thing to sue over similar names—I can see a case that people might have misconceptions over products. Saying you own the rights to a color is ridiculous. T-Mobile and Lemonade are in different industries.
https://newfoodeconomy.org/food-company-color-trademarks-ree...
https://www.telegraph.co.uk/news/2019/02/02/chocolate-wars-b...
* https://www.snewsnet.com/news/kuhl-sues-jagermeister-tradema...
We certainly have our fair share of less-than-scrupulous companies here.
That’s an oft repeated myth, but it’s not quite true, certainly not as broadly as stated.
From an article by the EFF:
> The circumstances under which a company could actually lose a trademark—such as abandonment and genericide—are quite limited. Genericide […] is very rare […]. Courts also set a very high bar to show abandonment (usually years of total non-use). Importantly, failure to enforce a mark against every potential infringer does not show abandonment.
[1] https://www.eff.org/deeplinks/2013/11/trademark-law-does-not...
That means no one in your category or nearby categories is already using it, and it isn't already a one-word generic term.
A term like "backcountry outfitters" is more defensible together than either word alone, but still isn't very good, because it describes a lot of existing business. Selecting just "backcountry"--a dictionary word--as your whole trademark is pure madness. It's analogous to claiming "zymurgy" as your trademark and sending C&D letters to every micro-brewery in the US, ordering them to stop using the plain dictionary term for what they do when describing what they do.
Examples of defensible trademarks would be "Goatsbeard Gear", "Spelunkatorium", "Voyageur's Choice", "Trailhead Traders", "Avalanchador", "Rockspider", "Backwild Country", "The Hinterlandery", "Boondock Swamp Charters".
The point is generating a unique, distinct, memorable, and non-confusing term.
They have trademarked a VERY common word. Now they're distracted by "defending" it. If that one word is all that stands between success and failure they're doing it all wrong.
Of course companies are going to try to overreach and get as much as they can. The point of having a government is to regulate and turn down unreasonable requests. That's where this needs to be fixed, not by expecting profit driven companies to altruistically leave money on the table. It should be obvious by now that doesn't work.
I think this proposal is too obtuse. These cases bother us because the man who founded Backcountry Denim was not proven beyond a reasonable doubt to have intended to encroach on the “backcountry.com” brand, nor was it proven that he failed to take reasonable precautions to avoid doing so. If that is the fair and just way to rule on these cases then that should be made to be the way that the judiciary rules. Proof of innocence beyond a reasonable doubt may not be exactly the right burden of proof in this case but the point stands that changing how the judges rule would solve more problems than arguing the semantics of the term “generic”.
I’m not sure of this is good or bad.
You can’t have exclusive use of the name Rottweiler for selling Rottweilers. However, you could register Rottweiler as a trademark for other goods or services. Where the mark isn’t the generic name for the goods, it’s usually an arbitrary or suggestive mark. Or if it’s a made-up word, it’s called fanciful. Your example DogHead would be a fanciful mark.
In short, the mark is always considered in connection with the goods and services with which it is used.
Trademark defense is one thing if you're proactive about it -- and as I understand it this is even a legal requirement for keeping the mark. Attacking another longstanding business because you've changed your business plan is, well, at least mildly sociopathic.
No, you didn't create it, many people could've arrived at the same.
> What about Dog or Canine?
No, you didn't create it, many people could've arrived at the same.
> What if I combined “generic” terms like DogHead?
Yes, it requires creativity.
If you can't copyright it then you shouldn't be able to trademark it.
- Currently, Backcountry.com owns a trademark to the word "Backcountry", but only for retail services. So if you tried to open an on-line store called "Bakckountry.com", say, they'd have a strong case against you.
- However, Backcountry.com is now expanding into sales of Backcountry-branded clothing and outdoor equipment. Their existing trademark doesn't extend to this usage, so in 2018 they applied for an additional trademark covering a wide range of outdoor goods.
- The US Patent & Trademark Office (USPTO) rejected that application on the grounds that "backcountry" is a generic, descriptive term. USPTO also mentioned the likelihood of confusion with an existing trademark held by Snapperhead Inventions for the Marquette Backcountry Ski.
- Backcountry.com then applied to USPTO to cancel Snapperhead's trademark. USPTO rejected that application.
- Backcountry.com has now filed civil suit in California in an attempt to force Snapperhead to give up their trademark.
In summary, this is hardly seems to be a case of Backcountry.com protecting its existing trademark. Rather, Backcountry.com is pressuring other firms with similar trademarks of their own to give them up so that Backcountry.com can expand its trademark rights.
How can consumers be confused by that word. If I'm searching google for backcountry gear, I am not searching for backcountry.com's brand. I'm searching for backcountry gear. There's no other way to say it. This is nonsense. It actually harms all other seller of that category. Allowing trademark of that word makes no sense.
Unless I'm missing something and backcountry.com literally coined the term and is responsible for its inclusion in the dictionary.
In 2006, ski touring was called 'randonee' as often as it was called 'backcountry' (even moreso in prior years). Similarly, off-trail/rugged hiking was in the wilderness, not the backcountry, prior to the mid/late 2000s.
I'm not sure how germane that is in this case, as I understand Backcountry has only filed for the trademark recently.
I don't think the founding spirit of the company is in line with the current legal strategy -- Backcountry may feel that they must aggressively defend the trademark in order to have any sort of trademark. As an online retailer, a trademark seems sensible (a competitor named Backcountry.net seems uncouth). Suing Marquette Backcountry Skis is utterly inappropriate and absolutely out of line for the corporate culture I associate with Backcountry.com.
https://books.google.com/ngrams/graph?year_start=1800&year_e...
'Backcountry' to describe non-resort skiing/boarding has been in use since at least the early 90's. Probably earlier. I've literally never heard anyone say the word 'randonee' in North America. Not once.
Source: I worked in the industry for more than two and a half decades.
"The term ‘backcountry’ is widely used by retailers and consumers to describe products and services to be used in remote, sparsely inhabited, rural areas,” Branch wrote in his counterclaim petition for cancellation, calling backcountry a “generic” term."
But I see your point. I do wonder if any of these defendants have added 'the term is descriptive, and therefore indefensible' to their defense.
However, if you want to make some breakfast cereal called "Windows bran flakes", you're absolutely allowed to do that under trademark law, because it has zero to do with computer operating systems. Just make sure the box doesn't look like Windows 10, or the Microsoft/Windows logos, or anything like that.
What we're seeing here is total overreach. "Backcountry" is a common word that's been around for centuries. So yeah, it would certainly be wrong for someone to start an online retail business selling outdoor stuff and call it "backcountry-equipper.com" or something like that. But they're suing people who are doing totally different stuff, like making jeans, not people operating online retailers of various outdoor equipment.
> As early as 2002, a court rejected Microsoft's claims, stating that Microsoft had used the term "windows" to describe graphical user interfaces before the product, Windows, was ever released, and the windowing technique had already been implemented by Xerox and Apple many years before. Microsoft kept seeking retrial, but in February 2004, a judge rejected two of Microsoft's central claims. The judge denied Microsoft's request for a preliminary injunction and raised "serious questions" about Microsoft's trademark. Microsoft feared a court may define "Windows" as generic and result in the loss of its status as a trademark.
Microsoft settled the lawsuit they filed by buying the name "Lindows" for $20M.
* Apple
* Amazon
* Nike
* Oracle
* Visa
* Fox
....
The point of trademarks is to protect consumers from misleadingly identified products. Whether the word is used for something else is irrelevant. Basically all western countries take into account the context in which the term is used. i.e. your grocery store can still legally sell a fruit called 'apple'.
“We may share information about you as follows or as otherwise described in this Privacy Policy:
- With third parties for their direct marketing purposes.”
At least as described in the “privacy” policy, this can include purchase history, device, geo location, and more, though just name and address would be bad enough.
"In September, the website went after David Ollila, a serial entrepreneur who in 2010 created a short ski for climbing snowy hills he called the Marquette Backcountry Ski...Backcountry.com argued that Ollila knew he was intentionally abusing the Backcountry.com mark because he had ordered products from the website in 2002 and 2010."
Well that's unfortunate to see. Motosport has always been pretty good to me. Looks like I'm finding a new store for dirtbike parts.
Also try Patagonia's Worn Wear site!
2) be not in the US
3) realise you can't access their website for support because they use geoip to 302 their entire domain to a different website.
We need this to be resolved at a cultural, societal, and/or legislative level.
https://www.bicycleretailer.com/retail-news/2013/12/09/socia...
Edit: I cannot imagine what people are finding offensive about this.
I will avoid buying anything at backcountry.com (unless I forget, which hopefully I won't), so I guess that's a bit of a penalty this time.
I'll just use REI now; they don't seem to sue people (plus, REI isn't a common word anyway), they have a fantastic return policy I've used a couple times now, and I get 10% back for being a member, plus various coupons throughout the year.
Still, I think I’ve ordered things from them before, but never again.
Can’t believe a sandwich shop was targeted by them... and I wonder how business has been impacted.
https://www.bloomberg.com/news/articles/2011-05-19/entrepren...
Also, burn that crappy trademark to the ground. If I tried to make an inflatable raft company named "River", they should laugh me out of the trademark office.
Also, click on their ads.
What a weak move. Screw them.
To me, whether suing for trademark infringement is ethically supportable or not comes down to the purpose of trademarks: to prevent consumer confusion (consumers thinking they're buying the product of one company when they're actually buying the product of another company).
If a company is suing for trademark infringement, but there isn't any reasonable chance that consumers will be confused, then the lawsuit isn't legitimate -- it's just plain old bullying.
Makes me think twice and I haven't even got an idea yet!
https://www.cbc.ca/listen/live-radio/1-70-under-the-influenc...
Backcountry is a place not a trade-marketable name. Owning the word 'backcountry' is strictly against the outdoor ethos.
If they wanted a company name they could trade mark then they should have selected a different name.
why would you want your brand to be known for lawsuits, rather than a reliable value added product?
It's a consequence of capitalism in a market that isn't free.
A free market is bad, obviously, but a lack of it has these sorts of problems. This company's abuse of the system can be stopped through legislation or government ruling, but until then it will have to be suffered through.
