Backcountry, the behemoth online outdoor retailer behind backcountry.com that has called Utah home for the past 23 years, is facing a deluge of criticism as word spread following reporting by the Colorado Sun about the company suing smaller outdoor brands for using the term “backcountry” in their name or product catalogue. Backcountry, which first trademarked the term in 2004 and has filed for additional usage trademarks in the intervening years, has since launched a legal offensive against at least 50 different defendants in a publicly available list from the United States Patent and Trademark Office.
Thus far the companies being sued for trademark infringement have ranged from a small independent ski manufacturer Snapperhead Inventions/Marquette Backcountry for their Marquette Backcountry Ski—which has been sold under the name since 2010—to avalanche safety course instructors Backcountry Babes to jean maker Backcountry Denim Co., now known as BDCO. Some companies, including Backcountry Babes and BDCO, have already settled with Backcountry, though terms haven’t been disclosed. Others like Marquette Backcountry’s founder David Ollila are gearing up for a legal battle.
Fighting back against Backcountry’s legal onslaught simply isn’t feasible for many targeted companies. Legal fees can quickly skyrocket, leaving them with few options but to acquiesce or be faced with financial ruin. It’s also not as simple as merely changing names for some. Backcountry is seeking punitive measures against Ollila and Marquette Backcountry, looking to overturn Marquette Backcountry’s own trademark in addition to requesting fees amounting to what Ollila told the Colorado Sun were more than three times the company’s lifetime profits. The lawsuit details Backcountry’s motives for the request. “Backcountry requests punitive or exemplary damages … in an amount sufficient to punish and deter defendants and to make an example of them.”
Backcountry is unlikely to end up with a sympathetic public image after engaging in such legal strong-arming. The optics are that of a large corporate entity—Backcountry was purchased by private equity firm TSG Partners in 2015—bullying vulnerable, independent companies in the outdoor space. Complicating things is the fact the term “backcountry” has been in common usage for decades prior to the company’s founding, and many feel it’s unethical if not legally dubious for a company to try and secure exclusive rights to the term. As such the #boycottbackcountry hashtag has been spreading throughout social media with everyone from average consumers to professional athletes speaking out against Backcountry. A longtime Backcountry sponsored athlete we spoke with on condition of anonymity felt “blindsided” by the company’s tactics and lack of a public response, which has left them publicly facing scrutiny about legal proceedings they have no involvement with.
A Utah-based patent and trademark attorney we spoke with provided some context. He also asked to remain anonymous to avoid any professional backlash. “After some initial research and without knowing all the facts of the case, it looks like they’re trying to strengthen their trademark by getting others not to use it. There’s always a chance if you don’t enforce your mark, it could later become unenforceable. You have to think of a trademark as a sword rather than a shield,” the attorney says. “That said, there’s a case to be made it’s a generic term and trademarks shouldn’t be applied to generic terms. I’d be interested to see how that would stand up to further scrutiny. Backcountry’s first registration in 2004 says it was for ‘retail store services, mail order services and computerized online retail services,’ but it’s expanded a lot since then. They filed in 2018 for trademarks on items like avalanche probes and climbing skins. People have been making and selling ‘backcountry’ marketed items like those for a long time.”
Attorney with IPLA John H. Kim was the person who filed for the trademarks on behalf of Backcountry in 2018, and he is yet to respond to our request for comment. Backcountry has also not responded to multiple requests for comment on the issue. As of now, the company is forging ahead with a host of branded Backcountry items that could have huge implications for other industry members going forward.
We will continue to update this story as it develops.
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