I’m a climber / skier / runner etc based out of Colorado and between my wife and we’ve spent a small fortune with backcountry.com. I didn’t know about any of this. Suing a maker of backcountry skis? Well, fuck you too, private equity jerkoffs. I’m going to light up my rep on this and let them know my spend and my recommendations are going elsewhere.
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."
Worth a mention...Colorado Sun is a great example of what local journalists can do after local legacy organizations are snapped up by national/global organizations.
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!
I chatted with a rep last night and they were very responsive, said "our managers are listening to customer feedback."
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.
Yup, I'm switching exclusively to Moosejaw until Backcountry is a little more reasonable here. Obviously they have to enforce their trademark to avoid losing it, but some of these lawsuits are egregious imo.
If a company does not make a consistent best-faith effort to defend its trademark(s), the claim on those trademark(s) get severely weakened. Companies are thus legally incentivized to defend their trademark (at least in the U.S.). This is a rational decision that has nothing to do with being an asshole (or not). If a company does not have a consistent track record of defending its trademark(s), then their claim gets severely weakened from a legal standpoint. Period, end of story.
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.
We're seeing this all over. Even on small scales - my wife just had many of her listings taken down on etsy because a patent troll claimed she owned an entire genre of crafts. This isn't the place to get into details, though, because my instance isn't the problem. Even the people doing the bullying, and etsy letting them get away with it, aren't the full problem. The court system is a bigger part, because many claims have no merit, but people know that not everyone can afford to go through the legal procedures to get that answer declared by a court. We've gotten to a point that you have to have money to fight some battles. Which means sometimes bullies win because others can't afford the fight. And setting up GoFundMe accounts every time someone gets bullied isn't scalable.
We need this to be resolved at a cultural, societal, and/or legislative level.
These abuses are a consequence of "money is free speech" and other court decisions which have moved the US towards one-dollar-one-vote rather than one-individual-one-vote.
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.
It's interesting, and I hope worth spreading in Germany where the laws on this exist, that a company can lay claim to a color and enforce that against other companies who are not competing in the same industry.
I hope that with the proliferation of TLDs this happens often enough that people get sick of it and we start enforcing the rule that generic words like mountain and road can't be trademarked. I'd prefer nothing, including Apple, get grandfathered in. Apple can go back to being Apple Computer or apple.com, whichever they prefer. I'd like the startup community to insist that startups like remote.com keep the .com in their name. Some companies, like hotels.com / hoteles.com still get it :)
What constitutes a generic term? Could I use Rottweiler as a trademarked brand? What about Dog or Canine? What if I combined “generic” terms like DogHead?
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”.
They also quietly share/sell your personal info to third parties (along with customer info from subsidiaries CompetitiveCyclist.com, Motosport.com, and SteepandCheap.com). From https://www.backcountry.com/sc/privacy-policy:
“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.
Backcountry is descriptive, which makes it a weak trademark. One defendant tried to claim they were in a different category. Why not claim the word is descriptive and argue to invalidate their use of the mark.
I contacted EFF about this yesterday and got this response: “Thanks for reaching out to us at the EFF and for making us aware of this issue. I'll share this with the team that works on trademark issues, but in the event you know or speak with anyone being targeted by backcountry.com, please do have them reach out to us!“
I’ve been on the receiving end of one of these. I used to run the snowboarding blog bckcntry.com and was given an ultimatum by backcountry.com, either take down the blog entirely, or advertise solely for backcountry.com and receive affiliate commissions. I chose the latter.
My personal experience has been that a generic phrase in common use cannot be used as a trademark. There has to be something added to it to make it unique. I wonder how they obtained the trademark in the first place?
You can register a trademark for a generic term if it is tied to a very specific category. It is what allows "Apple" to be trademarked when related to computers. The problem here is that "Backcountry" is a term that is too closely tied to what they are actually selling. It would be like allowing a phone company to trademark the term "Cell"
Generally speaking you can file a trademark for whatever you want; you just have to show it is being actively used in the way you say it is being used.
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.
well we had a recent discussion here about basecamp having to run ads to insure their name was top of a search listing. to me their name was more generic than this one. that is the problem with having a corporate name that already has been used in literature if not common discussion. if the name you want is already a reference to what you want to do or what you want to associate with your not really establishing a brand your merely exploiting an existing situation.
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.
IANAL. But my understanding is that's the case in general. There are apparently some exceptions where a phrase/word has carved out a distinct meaning in the context of a specific company [1] but that wouldn't seem to be the case here.
Guys, with the exception of safety and climbing equipment, buy all your outdoor equipment used, ideally on the local market. Reduce landfill and save money. Most of the stuff you buy is crap made in China anyway.
I wish there was a bullycompanies.com website that listed every bully company, like backcountry.com, with links to their bullying tactics. Then I could quickly check the list before making a purchase.
As a Denverite I was pleasantly surprised to see the Sun on HN. I did sort of wonder why Backcountry Delicatessen suddenly changed their name to Yampa (yuck) last year, and the article acknowledges the change states the owner was never contacted by backcountry.com. So at least they didn’t cause that monstrosity.
Still, I think I’ve ordered things from them before, but never again.
Well Utah is also the place where SCO Group was (is?); this was the company that tried to claim they owned Linux and insisted on selling licenses to it and suing companies that used Linux without buying one.
But are they really based in Utah, or just have their paperwork on file there because it made the most sense to file there? I was given the several options including Utah and Delaware as a place to file my company. Not sure what the implication you're making is.
What exactly is the motivation for Backcountry.com to invest the time and money in doing this? None of the tiny companies and groups they're going after would cause confusion to customers. Nor is that the intent of the other businesses. So what's the point?
Donated to the GoFundMe page, because as a small business owner, this kind of abuse of our copyright and patent systems really tees me off.
I could not ever spend a cent with backcountry.com now, because to me their brand means bullying and abuse.
[+] [-] crikli|6 years ago|reply
---
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."
[+] [-] jngreenlee|6 years ago|reply
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!
[+] [-] dgzl|6 years ago|reply
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.
[+] [-] jdorw|6 years ago|reply
[+] [-] ummonk|6 years ago|reply
[+] [-] pmarreck|6 years ago|reply
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.
[+] [-] tnorthcutt|6 years ago|reply
[+] [-] mbostleman|6 years ago|reply
[+] [-] tus88|6 years ago|reply
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."
[+] [-] cmrdporcupine|6 years ago|reply
I had actually been following those Marquette Backcountry Skis thinking some day I might get some. This makes me want them more.
[+] [-] hans_castorp|6 years ago|reply
[+] [-] PatrolX|6 years ago|reply
[+] [-] skierjerry|6 years ago|reply
[deleted]
[+] [-] codingdave|6 years ago|reply
We need this to be resolved at a cultural, societal, and/or legislative level.
[+] [-] rectang|6 years ago|reply
[+] [-] PietdeVries|6 years ago|reply
T-Mobile says it owns exclusive rights to the color magenta
https://adage.com/article/digital/t-mobile-says-it-owns-excl...
[+] [-] xenocyon|6 years ago|reply
[+] [-] samsolomon|6 years ago|reply
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.
[+] [-] mfer|6 years ago|reply
[+] [-] benatkin|6 years ago|reply
[+] [-] gatherhunterer|6 years ago|reply
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”.
[+] [-] troydavis|6 years ago|reply
“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.
[+] [-] mmaunder|6 years ago|reply
[+] [-] BenFrantzDale|6 years ago|reply
[+] [-] kevlawrence|6 years ago|reply
[+] [-] ozi|6 years ago|reply
[+] [-] dottenad|6 years ago|reply
[+] [-] mark-r|6 years ago|reply
[+] [-] n8henry|6 years ago|reply
[+] [-] snowwrestler|6 years ago|reply
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.
[+] [-] Shivetya|6 years ago|reply
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.
[+] [-] ghaff|6 years ago|reply
[1] https://slate.com/news-and-politics/2002/02/can-you-trademar...
[+] [-] chrisseaton|6 years ago|reply
Have you never heard of, for example, Facebook?
[+] [-] 23B1|6 years ago|reply
[+] [-] thfuran|6 years ago|reply
[+] [-] irrational|6 years ago|reply
[+] [-] jasonmp85|6 years ago|reply
Still, I think I’ve ordered things from them before, but never again.
[+] [-] milkytron|6 years ago|reply
Can’t believe a sandwich shop was targeted by them... and I wonder how business has been impacted.
[+] [-] iicc|6 years ago|reply
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.
[+] [-] pc86|6 years ago|reply
[+] [-] scrumbledober|6 years ago|reply
[+] [-] pro_zac|6 years ago|reply
https://www.bicycleretailer.com/retail-news/2013/12/09/socia...
[+] [-] bredren|6 years ago|reply
https://www.bloomberg.com/news/articles/2011-05-19/entrepren...
[+] [-] imglorp|6 years ago|reply
[+] [-] alphag|6 years ago|reply
[+] [-] magduf|6 years ago|reply
[+] [-] ummonk|6 years ago|reply
[+] [-] dylan604|6 years ago|reply
[+] [-] mbostleman|6 years ago|reply
[+] [-] dsleno|6 years ago|reply