“Is it taken?”

Those three words are killers. Responsible for the death of thousands of great ideas in the creative world. The murder occurs when the creative team comes up with the most perfect, exquisite, sublime, succinct, profound campaign concept, tagline, or name ever created, and the account manager says, “I love it. IS IT TAKEN?” Before the words have left her lips, you realize you never ran your piece of profound perfection through a simple search on the US Patent and Trademark Office’s Trademark Electronic Search System (TESS).

Because, as it turns out, 97% of ideas have been done before and 91% of the good ones have been legally claimed. The odds are so against you. However, there are all sorts of nuances to trademark law (pay specific attention to the Goods & Services category), which is why trademark lawyers exist, and why I always hire one if I have any doubt that whatever idea, concept, etc…I am going to present might, just might, infringe on someone else’s IP. Because I once sold a client on the perfect concept only to discover later that it was already trademarked. I still have the scars (emotional, physical, and financial).

Save yourself the angst (and the legal bills), and remember, “Is it taken?”

For Backcountry™, the answer is yes.

Backcountry’s enforcement of its trademark came to light in an October 31 article by Jason Blevins in the Colorado Sun. The article noted several small, start-up outdoor businesses and non-profits with “backcountry” in their name had been threatened with legal action unless they ceased-and-desisted using backcountry. The overly aggressive enforcement spawned a Boycott Backcountry movement that now registers more than 20,000 members in a Facebook Group.

Brands need to protect their intellectual property. They just do. To better understand why, visit Interbrand’s brand valuation report that ranks brand value based on the role the brand plays in a purchase decision, brand loyalty, and related financial performance factors. (Spoiler alert: Apple is 2019’s top valued brand at…$234 billion. Closer to home, Adidas is valued at $11 billion). So, yeah, brands need to protect their brands. It’s a business asset.

Lawyers litigate, for their clients, specifically. They just do. But, as always, there is a difference between the court of law and the court of public opinion. The debate ‘Is this legal?’ versus ‘How does this play?’ is an important conversation to have between legal and marketing/PR. The lawyers hate this conversation because their world is binary (legal/illegal) and the court of public opinion is…let’s say elastic. And this is where Backcountry gets in trouble.

Because of its ski bum origin story and years of Gear Head above-and-beyond customer service, Backcountry has a reputation as the core store for outdoor (online). The Backcountry.com customer is more aggro, more epic, and more rad than the REI customer, or, more importantly, that’s how they see themselves. For them, the backcountry is not for “recreation,” it’s a canvas to express themselves on.

That independent, creative element is key to understanding the blowback the company is receiving from its community. The smaller companies Backcountry’s lawyers are, um, communicating with are living the dream in the minds of their community: independent entrepreneurs, creating a business from scratch, on their terms, and usually in/near a Best Place to Live™. And now the Backcountry Death Star has aimed its legal superlaser at the rebels. Not a good look.

Their apology, the cancellation of the lawsuits, and firing the law firm are good first steps, but the next steps will be critical. Backcountry has never really invested in brand-level marketing, outside of content and their athlete/ambassador program, (I also consider their Gear Head customer service part of their brand marketing), so the market doesn’t really know what it stands for beyond gear. And that’s the opportunity.

To return to one of my favorite quotes from ad legend Bill Bernbach, “A principle isn’t a principle until it costs you money.” Like a husband in the doghouse for some thoughtless miscommunication (not that I would know), Backcountry is going to need to prove its love to the community, repeatedly, and for a while (apparently).

In business, it’s not as easy, affordable, or quick as flowers, although the same principle applies. Interbrand calls them “Iconic Moves”: a big, bold, disruptive, on-brand, and usually expensive initiative that simultaneously challenges the status quo and better positions the brand. I hate to be so cliché, but REI’s #OptOutside Black Friday initiative is an “Iconic Move.”

What could Backcountry.com’s Iconic Move be? I have ideas (a start-up innovation incubator for outdoor entrepreneurs, like GORE’s Silicon Valley Innovation Center), but I bet the Backcountry community does, as well.

Drew Simmons, of Pale Morning Media, who works as Grassroots Outdoor Alliance communications and policy advisor, spent time on the Boycott BackcountryDOTcom Facebook Group and discovered that the initial explosion of customers holding a brand to a high standard, quickly evolves into customers holding other customers to that higher standard.

“This is a new twist— i.e., a consumer that was brand aware, is now brand and channel aware because of a grassroots community effort—and it’s unclear how big or lasting it will be. It’s a potentially huge opportunity. Being aware of this dynamic and cultivating it wherever appropriate is the path.”

Backcountry.com has built up lots of goodwill over the years that they can leverage. This mini crisis is an opportunity, for them and for specialty, to remind customers and the industry what we all share in common. Something big, bold, creative, and adventurous.

Mike Geraci is principal of Geraci & Co., a brand strategy and communications group in Jackson, Wyoming. He’s a fan of the Ramones and fly-fishing. He is a frequent contributor to Outdoor Retailer Magazine and The Daily.