Business Monday: Stouffer to appeal ‘Wild America’ ruling favoring National Geographic

Marty Stouffer’s trademark lawsuit against National Geographic is headed to a federal appeals court after a district court judge dismissed the local wildlife filmmaker’s complaint in May.

An attorney for Stouffer filed a notice of appeal in the U.S. Court of Appeals for the 10th Circuit on June 5 and it was added to the court’s docket June 8, public records show. Stouffer said last week his legal team is preparing a brief to be filed soon.

Marty Stouffer Productions is based in Aspen and sued National Geographic in December 2018 on claims of trademark infringement, unfair competition and deceptive trade practices. The lawsuit alleged National Geographic swiped Stouffer’s ideas and stole his “Wild America” brand for their own video productions.

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National Geographic, which is owned by Walt Disney Co., argued that the First Amendment was at play because Stouffer’s lawsuit was trying to exert trademark control over a genre, which in this case is nature and wildlife documentaries. The company asked the suit to be dismissed.

“This case raises the question of what protections the First Amendment provides to those accused of trademark infringement,” wrote Judge William J. Martinez of the U.S. District Court of Colorado in his ruling dated May 8.

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Marty and his brother Mark produced the “Wild America” series that ran for 14 years on PBS starting in 1982. The show also has been syndicated through DVDs, streams and video-streaming platforms, and Marty Stouffer Productions owns a trademark on “Wild America.”

Based on court pleadings and orders, National Geographic and Marty Stouffer in 2010 began talks about the company buying or licensing his film library, but the discussions fizzled. By 2012, National Geographic was airing its own nature programs called “Untamed Americas” within the United States and “Wild America” internationally on its television networks.

Stouffer was unaware of those programs, and continued negotiating in 2012 with National Geographic; the talks did not gain traction and National Geographic in 2013 released its “America the Wild” series with host Casey Anderson, whom Stouffer said resembled him and also interacted with grizzly bears like he had done on “Wild America.”

Judge Martinez did not buy Stouffer’s argument that National Geographic stole ideas or the brand from the “Wild America.”

“While the English language is notably quite expansive, the range of words to describe such programming is limited,” read Martinez’s 22-page order. “Yet Stouffer would not allow even a synonym for ‘wild’ (i.e., ‘Untamed Americas’). If trademarked words themselves and their synonyms are off limits, then the artistic choice regarding a title becomes significantly constricted.

“The case might be different if Stouffer’s ‘Wild America’ series had been about, say, American teens engaging in risky behavior, and National Geographic’s ‘America the Wild’ covered the same or a similar topic. … Here, however, National Geographic selected titles that correspond closely to nature documentary programming.”

Stouffer said he didn’t want to go deep into the legal arguments, but he questioned why the First Amendment is a major factor in an intellectual-property dispute. The judge’s order essentially said Stouffer can’t censor National Geographic.

“To my mind, the whole point of a trademark is being to disallow such ‘infringement’ without permission,” he said.

rcarroll@aspentimes.com