Update: After a nearly a week of silence — while boycotts and backlash against them spread around the web — backcountry.com released this “letter to our community” last night. Apparently they have “never been interested in owning the word ‘backcountry’ or completely preventing anyone else from using it.” I’d say their actions say otherwise, but ultimately that’s up to consumers to decide.
Businesses and organizations sued over ‘Backcountry’
The letter first arrived in spring 2019, a polite cease and desist addressed from outdoor retail giant backcountry.com to Cripple Creek Backcountry. It stated that CCBC no longer had the legal right to include the word ‘backcountry’ in its name. It was only one of many letters that landed in the hands of small business owners around the country during the past year. The letters demanded that by order of trademark law, organizations employing the word ‘backcountry’ must stop or they’d get sued.
Since then, many have been sued or reached settlements, as detailed by this recent Colorado Sun article. Targets include the avalanche education site Backcountry Babes and jean maker Backcountry Denim. David Ollila, owner of Michigan-based Marquette Backcountry Skis, got a house call from his local sheriff who delivered papers detailing the lawsuit. Marquette discussed the lawsuit last week on the podcast, Wintry Mix. CCBC nervously awaits a followup letter.
To be clear, backcountry.com did file trademark rights for the term backcountry. What they’re doing is not illegal, but it does wade into murky ethical waters. (And full disclosure: for many years, backcountry.com has and continues to support WildSnow through affiliate links). You could say this is just the nature of business. Or you could say a large outdoor retailer is bullying small businesses in order to solidify its position at the head of the industry. The bigger question in my mind mind, though, is whether a business or organization should be able own the rights to the name of experience shared and valued among devoted groups of people, particularly if that ownership is sought on the grounds of selling more of the products people use to access that experience.
The whole affair reminds me of a time over a decade ago when yoga was hitting the mainstream. The ancient philosophy had been found to have measurable health benefits (not excluding fine tuning of womens’ derrieres) and the founder of Bikram Yoga — a sequence of 26 poses completed during a 90 minute period in a room heated to 95-108 degrees — decided that he would copyright the sequence and to sue small studios around the US who offered any variation of it (which was based on long-standing practices; he did not devise it himself).
I was interning at a yoga magazine at the time, which was situated in an ashram in northeastern Pennsylvania. The ashram prided itself in upholding foundational roots of the practice of yoga as philosophy and spirituality, which ran counter to the fitness frenzy behind its growing popularity, particularly Bikram style hot yoga. Residents and practitioners at the ashram voiced shock and disgust that someone would propose something so asinine as copyrighting a spiritual practice that was, at its core, a rigorous path to enlightenment and had been for thousands of years. (In 2015, an affiliate court ruled that Bikram yoga is not entitled to copyright protection).
Many of us in the backcountry skiing community consider the backcountry experience a similar path to a sort of enlightened state of being. We venture into untracked terrain in frigid temps and deep snow without cell service to get farther from society and closer to ourselves. The backcountry is symbolic of freedom, adventure and beauty, ironically a place to escape the consumer rigamarole of capitalism and all of the pressures, expectations and distractions therein.
On a less philosophical level, we can look to the term ‘backcountry’ as a term wholly assimilated into ski and outdoor vernacular. This makes the trademarking of ‘backcountry’ hard to defend. For example, if you Google ‘Corn Flakes,’ you’ll see that the term itself can’t be trademarked. It’s just a type of cereal. As a corn flakes maker, the name ‘Kelloggs’ can be trademarked, but they’d need to spend a lot of money on marketing to defend their position as the sole corn flake specialist of the breakfast cereal market.
Of course, though, companies need to protect their positions within the spheres of the industry. And as consumers, we buy things that allow our backcountry experiences to be more comfortable and safe, more fun and efficient. Capitalism encourages innovation so that the products allowing us embark on those experiences are constantly improving. This is only natural and we as consumers benefit. But should any business, large or small, be given the reins to lay legal claim to the very ideal that brings us all together?
Readers, weigh in. Should someone own ‘backcountry’?