Why are herbalists so upset about this trademark?
The root of the issue is the trademarking of a generic herbal term so it is no longer available in commerce. Hundreds of small herbal companies use this name, and have used it for the last 30 years. Herbalists are actually happy that this company has done so much work to put fire cider in the national spotlight, and are promoting health/herbal tonics. Another core problem is that this term is the intellectual property of Rosemary Gladstar (copyrighted in 1994), and invented by her in the late 1970’s. She has widely shared this term with the herbal community for over 30 years. At this point, the herbal community sees this term as cultural, historical AND generic.
Why do Shire City Herbals have to use a term that is already used in commerce by the herbal community? Why wouldn’t they come up with their own original name, instead of trademarking a cultural, historical, generic term? We don’t know….. but, we do know that this could set the precedent for the trademarking of generic, traditional terms by national companies and could lead to a huge change in the grassroots herbal product industry, nationally and internationally. With national companies potentially bullying smaller herbal producers with the legal system, forcing them to stop using generic, cultural, historical herbal terms, so that they can capitalize off of the term, and monopolize the industry with the standardized product. A scenario like this could lead to restricted access to quality, small batch, herbal remedies made locally and distributed locally.
What is the history of the legal aspect of the Fire Cider trademark battle?
Check out our timeline of events here!
- Many herbalists see the actual application and execution of trademarking the traditional herbal term Fire Cider as legal action against all herbalists who sell fire cider.
- After 6 months of the nationwide boycott (from February 2014-June 2014 ) against Shire City Herbals (SCH-the current owner of the Fire Cider trademark) they announced in a public statement that they will not cancel the trademark or work with the herbal community to get this term recognized as generic.
- The Tradition Not Trademark team then filed a petition for cancellation of the trademark with the USPTO in June of 2014.
- In April of 2015, Shire City Herbals sued 3 herbalists, 2 of whom are founders of Traditions not Trademark, senior users of the term and the very people that filed the cancellation of the trademark, Nicole Telkes & Mary Blue. They also included in the lawsuit national distributor of Fire Cider, Kathi Langelier of Herbal Revolution (who, in 2014, had already changed her Fire Cider product name to Fire Tonic to avoid trademark a trademark infringement lawsuit). The defendants of the case and have become known as the “Fire Cider 3”. Click here for more info on this lawsuit. This lawsuit effectively stalled Tradition Not Trademarks petition to cancel the Fire Cider trademark for the last 3 years and forcing it to be heard in federal court (where it is more expensive and time consuming).
- The lawsuit alleged that the Fire Cider 3 caused $100,000 in damages to their business due to the boycott, and for trademark infringement. A few months before the lawsuit was launched, owner of Shire City Herbals, Amy Heubner, posted comments on a blog post that the boycott doubled their business. But yet, they sued the very people that filed for the cancellation of the trademark for “$100,000 in damages” due to the boycott. “Instead of withering under the boycott, we have nearly doubled the number of customers and stores that stock Fire Cider”. Amy Huebner, February 27, 2014.
- In April of 2016, the Fire Cider 3 had HUGE COURT VICTORY. The legal team filed a successful appeal many of the counts against the defendants based on the anti-slapp law. The Fire Cider 3 are now just facing the trademark infringement counts of the case.
- In February, 2015, Shire City Herbals lawyers sent an official “Cease and Desist” letter to a small herbal company in Vermont.
- In 2015, Shire City Herbals sued Temple Turmeric for using the term Fire Cider on a beverage they were producing. Shire City Herbals has NOT been granted trademark ownership for the term Fire Cider in the BEVERAGE category. Because they did not want to be involved in a legal battle, Temple Turmeric changed the name, and settled the lawsuit.
- As of January 2017, Shire City Herbals has sent 26 personal letters and emails (example here) to many small herbal producers on Etsy and personal letters to larger producers. These letters state that they hold the trademark for the term and are asking the herbalists to remove the name fire cider from their products, product descriptions, and tags online. Some of these letters are to producers who sell products that are not even named fire cider, but have fire cider in their description or tags.
- After much back and forth with petitions to the court and settlement attempts, the trial for this trademark has been set for March 25, 2019.
There has been some confusion among herbalists regarding the term “Cease and Desist”. Earlier letters that were sent to herbalists by Shire City Herbals were incorrectly referred to as “Cease and Desist” letters. Herbalists were not aware that this term requires an additional legal action that would need to be taken by Shire City Herbals. Any mention of “Cease and Desist” by herbalists made in the past is referring to the personal letters sent by Shire City Herbals asking them to cease the sales of Fire Cider. We are working to correct this technicality among the herbal community, on blogs and posts, and from here on we will refer to the above mentioned action as “cease sales” letters.
However, the action the herbalists are referring to is still the same. Shire City Herbals has asked many herbal companies to cease sales of fire cider, with potential legal ramifications if they do not.
Where does the case currently stand?
In January 2017, Fire Cider 3 and SCH sat down with their lawyers and a court magistrate in mediation. An agreement could not be met, the court issued a timeline for discovery and trial set for March 25, 2019.
Can I use the term Fire Cider?
The trademark only covers the COMMERCE of fire cider. Fire Cider has been copyrighted in Rosemary’s books since 1993 and appeared in the first edition of her home study course in 1981 and she continues to share the recipe and name freely.
Legally, the herbal community can use the term freely in recipes, blogs and on social media. Many herbalists are still using the term in commerce, and are not being intimidated by the Shire City Herbal business owners waving their trademark around.
Many herbal companies are multi-faceted using classes, books, blogs to promote products. In order to sell their product and not confuse customers (and promote their own products, not Shire City’s products), they will have to change the name of Fire Cider in product promotions, such as books, classes and blog posts. Legally the trademark only covers the commerce of Fire Cider, but the side effect of changing a product name means that it has to get changed in promotional material such as books, blogs, recipes and classes.
Why would they trademark the generic herbal term “Fire Cider?
Has anyone tried to just talk with them?
Shire City Herbals has publicly claimed they do not want another national company to come in and take the name from them. They have declined offers from the herbal community to work together to get the name recognized as generic. Many kind hearted souls have tried to mediate between the two sides. Tradition Not Trademarks legal team has spent countless hours going back and forth with SCH lawyers trying to settle. The Fire Cider 3 participated in mediation with SCH, which was mediated by a court magistrate.
What type of business is Shire City Herbals?
Shire City Herbals is an incorporated business owned by 3 people run in Pittsfield, MA. They are a national distributor of “Fire Cider”. Their website shows they sell to stores all over the country, and that they only have 1 product (and lots of paraphernalia for that product!), and that product is Fire Cider. In 2012, they started the process of trademarking the traditional, generic herbal term, “Fire Cider”. We do not know anything more of these people, and the facts above lead us to believe that they are a national corporation working to corner an industry with a single product.
What happened to the anti-trademark Fire Cider Facebook page?
One of the owners of Shire City Herbals contacted facebook and claimed that our grassroots response (on facebook) to their trademark violated their rights. letter from facebook here.
We now have a new facebook page with more likes than we had on the old one!
In February 2014, Amy Huebner complained to facebook and had them take down our World Fire Cider Making day page.
IIs thisis an overstepping of enforcement of their trademark? Is this violating our right to free speech?
Whether Shire City Herbals is for or against the non-commercial use of the term fire cider, it doesn’t matter. They do not own all rights to the term, and any instances of them potentially overstepping their claims to the term (outside of commerce) is being documented.
What are you trying to accomplish with the boycott?
Grassroots power is one of our only tools for change. While waiting for legal advice, we got organized with the tools we were familiar with. There were thousands of angry people wanting to channel their efforts into doing something to change this. Through an organized effort, the goal was to channel the public outcry through letters and phone calls and using our right to free speech, persuade Shire City Herbals that we think trademarking a traditional herbal term is wrong. They ignored our the first email campaign, ignored the second letter writing campaign, and ignored our phone call campaign. We have continually asked supporters of this campaign to be courteous and we do not have control over people’s anger over this situation. This issue clearly upsets a lot of people and Shire City Herbals have felt the backlash of the anger, for the simple legal action of trademarking an herbal term.
Rosemary Gladstar, a well know community activist, has accomplished a lot with the grassroots herbal community in the past. Movements surrounding the Traditional Medicine Congress and the non-profit group United Plant Savers are a couple examples of the grassroots herbal community in action led by Rosemary. Rosemary has worked to guide the anti trademark grassroots movement that sprang up around her. She stepped in after she saw the public response to the trademark, and has been an active guiding force in the organized response effort.
*We have heard our boycott campaign referred to harassment, which we disagree with. In many of Rosemary’s letters and our blog posts, we ask the public to avoid harassment and negative comments. Our campaign directs citizens to voice their concerns in a polite way. This contact may be un-welcomed, and this may be overwhelming and feel like harassment when a person is at the receiving end of thousands of comments from many different individuals, but this is not harassment, this is grassroots power. However, if the same person is contacting Shire City Herbals more than 1 x per action alert, this could potentially be harassment, and we encourage Shire City Herbals to take what action they see necessary to stop this. We also encourage anyone who is contacting them more than 1x for each action alert to stop doing that.
The following is an example of a state law dealing with harassment:
“S 240.25 Harassment in the first degree: A person is guilty of harassment in the first degree when he or she intentionally and repeatedly harasses another person by following such person in or about a public place or places or by engaging in a course of conduct or by repeatedly committing acts which places such person in reasonable fear of physical injury.
What is the petition for?
We will be presenting the petition and comments during the trail.
Please sign here!
The petition is also addressed to Shire City Herbals. We are also petitioning them to drop the trademark.
Can we do anything else to revoke the trademark?
At this point, we are patiently waiting for our trial date in 2019. We are asking people to support the boycott and our efforts in federal court to get the trademark cancelled by spreading the word, donating and making some noise!!
This has already taken 5 years, and may take more to get the trademark cancelled.
We are not able to speak publicly about our legal strategies. Thankfully, we do have an amazing experienced legal team who is competent and looking at every angle to revoke this trademark.
Thank you for all of your input and energy into this cause.