Outdoor enthusiasts aren’t letting go of their backcountry without a fight.
As news spreads about Backcountry.com’s recent slew of legal actions against small business owners using the word “backcountry” in their names, so is public outrage.
Within a few days of a Colorado Sun story detailing the U.S. District Court lawsuits and U.S. Patent and Trademark Office petitions filed on behalf of Backcountry.com, a Boycott Backcountry.com Facebook page has more than 4,500 members. A GoFundMe page is collecting money to support Marquette Backcountry Ski founder David Ollila, the only business owner who has not settled after being sued in federal court.
“This obviously didn’t resonate well with the market,” said Ollila, the Michigan entrepreneur behind Marquette Backcountry Ski who was sued in September by Backcountry.com for trademark infringement. “Looking at all the comments online, I see people saying that until this is rectified, they are not shopping there. I see this as a great wake-up call to the industry and awareness about what it takes to run a small business and what a fair playing field looks like.”
The 23-year-old Park City, Utah, e-tailer — founded by a pair of skiers but owned since 2015 by private equity firm TSG Consumer Partners — has a registered trademark for “online retail store services” from 2008. Last year, as Backcountry.com mulled business diversification strategies like partnering with well-known brands like Black Diamond, Smartwool, Burton, DPS and Flylow, the company began filing requests for product trademarks.
That expansion of the brand into equipment and apparel accompanied aggressive legal challenges to entrepreneurs using the word “backcountry” in their product names.
Backcountry.com has yet to speak publicly about the controversy. On Monday, a company spokeswoman declined to comment.
Meanwhile, The Sun in recent days has learned about several more trademark disputes initiated by Backcountry.com against Colorado companies.
Jenny Verrochi, who started Backcountry Nitro last year in Boulder with a Kickstarter campaign, got a cease-and-desist letter this fall from IPLA, the nation’s largest trademark law firm representing Backcountry.com in recent trademark filings. She emailed back and forth with the company’s IPLA lawyers in October, noting that she had secured the trademark for her organic cold-brew coffee brand earlier this year.
The company’s settlement offer said Verrochi could continue to sell Backcountry Nitro coffee but could not advertise, market or sell online.
“Given the circumstances, I believe this is quite fair,” IPLA senior associate Ben White wrote in an email. “Although you may disagree, that is what happens when you adopt an infringing trademark. Imagine if you tried to sell goods in an online store named Amazon Nitro — do you think Amazon would allow that? This is an analogous situation.”
Verrochi responded by saying that the ability to sell a product without marketing means “there is no settlement here.”
“The domain backcountrynitro.com, which I own, is of great value to me. If you would like me to rebrand, what is the name worth to you?” she wrote back.
White responded that she does not “appreciate the seriousness of this matter” and urged her to consult a trademark attorney.
“This is not going away. If your next communication is anything other than a complete acceptance of settlement terms, we will understand you have no intent to comply with our client’s requests and we will proceed accordingly,” White wrote. “Please be aware that my client will not be inclined to resolve this matter amicably if it is forced to oppose your application or formally litigate the matter.”
Faced with a potentially devastating lawsuit, Verrochi caved. She rebranded her company as Wild Barn Coffee.
“It costs a lot of money to rebrand and they kind of put me out of business for a little bit,” she said. “It’s been a stab to the heart. But I feel better knowing this company’s actions are being seen and this is getting heard. It makes me feel a little less alone.”
Leo Tsuo last fall rebranded Weston Snowboards in Minturn as Weston Backcountry to reflect the company’s focus on skis and split boards meant for traveling in the backcountry.
“It fit our ethos,” he said. “It was just more in line with our brand and everything we are supporting, like keeping our public lands public and avalanche education classes and avalanche forecasting. It just spoke to who were are.”
Citing advice from his trademark attorney, Tsuo declined to talk about any contact from Backcountry.com or the possibility of rebranding again.
Backcountry.com lawyers this spring demanded Doug Stenclick drop “backcountry” from his Cripple Creek Backcountry.
The Carbondale company sells equipment and apparel for human-powered skiing. He was reticent to discuss his plans, but noted that he and his partner recently purchased the Wildsnow.com blog, founded by pioneering backcountry skier Lou Dawson.
(Dawson, incidentally, was among the first to use “backcountry” as a compound word in his seminal guidebooks, starting in the mid 1980s, alongside influential ski writers and gear innovators including Craig Dostie, Paul Ramer and Lito Tejada-Flores.)
Emily Hargraves, the owner of Backcountry Babes, said she could not talk about the settlement of the federal lawsuit Backcountry.com filed in July against her avalanche-education company.
Want to know more about how we reported out this story? Read a Reddit “Ask Me Anything” with reporter Jason Blevins.
But a June filing with the USPTO notes the Backcountry Babes trademark — which she first used in 2012 — makes no claim apart from “physical education services” and “conducting guided outdoor expeditions” and “providing information concerning safety risks in the backcountry and/or avalanche terrain.”
The owners of Backcountry Delicatessen in May renamed their company Yampa Sandwich Co. But Peter Boniface, who founded the deli in Steamboat Springs with David Pepin in 1999, said the change was related to plans to franchise the brand beyond their current five stores. He said he never was contacted by Backcountry.com.
But the word did play a role in the name change, Boniface said.
“We wanted to expand with a franchise model and it was recommended that we change our name to something more unique because there are too many backcountry brands out there,” Boniface said. “No one reached out to us, but we saw the name as diluted and as we were looking to expand, it was time to change and be more unique and bring the company back to our roots.”
Attorney John Branch took a different tack when contacted by Backcountry.com over the use of the word by his client Backcountry Discovery Routes. The Seattle nonprofit provides GPS maps of off-highway, cross-country routes for motorcycle travelers and counts more than 30,000 members.
Branch countered the USPTO petition for cancellation filed by Backcountry.com’s attorney with his own petition to cancel Backcountry.com’s trademarks.
“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.
IPLA attorney John H. Kim’s response to the counterclaim called Branch’s argument “incomplete, threadbare recitals of the elements of genericness.”
The nonprofit isn’t looking for a fight with Backcountry.com, Branch said.
“We do trip planning for outdoor motorcycle enthusiasts. We have 30,000 members who probably buy a lot of their products. We really don’t see ourselves in any way as being in their way,” said Branch, an attorney with Lowe Graham Jones law firm in Seattle. “I hope a lot of this settles amicably. If the management of Backcountry.com, if they think this is going to increase sales and improve their brand, that’s their business. But my hope is they come to an accommodation with all of these nonprofits out there.”
- What’s Working: Gig companies want workers back and are paying bonuses in Colorado
- SunLit Interview: For Martin J. Smith, “Going to Trinidad” launched a challenging odyssey
- Exclusive excerpt from “Going to Trinidad”: A patient arrives at a gender-confirmation crossroads
- Opinion: 18 years after the Concorde’s last flight, supersonic air travel will soon be ready for another takeoff
- Colorado is in its fourth coronavirus wave as more contagious variants become dominant among cases