Fire Cider: Let’s Call it What it Is

fc_recipeIf the Chick-fil-A lawsuit over “Eat More Kale” got your goat, this should too: A while back, the national company Shire City Herbals trademarked “fire cider,” a term that has long been used as a traditional/generic name for a spicy, warming, apple cider vinegar-based herbal remedy popularized by Rosemary Gladstar. Now, this company is suing three herbalists over this trademark.

As USPTO.gov puts it, “A trademark or service mark includes any word, name, symbol, device, or any combination, used or intended to be used to identify and distinguish the goods/services of one seller or provider from those of others, and to indicate the source of the goods/services.” This is different from a patent, which protects the production of the item itself. It is possible to patent a recipe, but it has to be a pretty newfangled and unusual recipe. So, (while I’m no legal expert), what this seems to boil down to is that the trademark doesn’t prevent people from making fire cider, it does prevent people from using the phrase commercially.

Trademarking can be a legitimate way to protect a business’ investment/reputation. So what’s the problem?

“Fire cider” has been used as a generic term for decades. It was popularized by Rosemary Gladstar beginning in the 1970s, and she has shared both the recipe and the name freely. On the other hand, Shire City’s “about us” page states that one of the co-owners “began making early versions of Fire Cider in the 1990’s” and first sold the remedy in 2010. I began my first program at Rosemary Gladstar’s Sage Mountain Herbal Education Center in 2010, and fire cider was one of the remedies we learned to make. It was a popular one and already well-known amongst my fellow students, through Rosemary’s work. It’s also included in Rosemary’s books, which came out well before then.  The term “fire cider” was in widespread usage before Shire City even started selling their product.

Trademarking “fire cider” is akin to someone trademarking the phrase “chicken noodle soup.” Limiting the use of a generic name like this compromises our ability to communicate effectively. In this case, it makes it more difficult for consumers to navigate herbal remedies, and stifles fair competition. If someone goes to the co-op to pick up some fire cider – the warming remedy that they heard about from a friend or in Rosemary’s books – they should be able to see clearly which items on the shelf are fire cider, because they’re labeled as such. By preventing that, this trademark seeks to force other companies to use substitute names and descriptors, which just makes things confusing. Remember, this isn’t as though Pfizer was trying to keep other companies from using the word “Advil,” but as though they were saying they had the exclusive right to the generic term “ibuprofen.” It’s as though Smucker’s had trademarked the term “jelly” or Merriam-Webster claimed it had the exclusive right to call a book a “dictionary.”

Stifling the use of a traditional/generic term like “fire cider” (by reserving that use for a single company) is unacceptable. In order to have power over our own health, we must be able to communicate clearly about which remedy is which. In addition to making our own fire cider, it’s our prerogative to purchase fire cider from the many and varied small companies run with intention by skilled herbalists. Those companies must have the right to communicate effectively with consumers, and consumers have the same right to clearly understand the product they’re buying.

This is an issue that strikes home for herbalists – but its ramifications aren’t limited to those of us practicing herbalism.  If you’re a consumer of herbal products, and you want to make sure those products are labeled so that they’re easy to find and compare, this affects you.  If you care about strong local economies based on thriving independent businesses (like the herbal businesses affected by this trademark and lawsuit) this affects you.  If you simply believe that it’s our right to communicate effectively and clearly, that corporations must not be allowed to own traditional terms in our language, this affects you.

Please, take action.  What can you do? Check out the video below and visit freefirecider.com to find out.

 

 

PS:  Don’t forget to mix up some of your own!


11 Responses to Fire Cider: Let’s Call it What it Is

  1. Generic terms, like this, usually cannot be trademarked. There must be more to this story. If, indeed, the facts are as represented, a good defense would be that the trademark is invalid as being merely generic.

    • David: Thanks for visiting and for your comment! The trademark is being challenged on that basis. This spring, freefirecider.com sent out a call for evidence that fire cider existed before 2012 (in the form of sales receipts, photos of labels, class notes, etc.), to show that fire cider has been being used as a generic term for some time. A recent article* quoted the defendants’ lawyer, Rita Heimes: “Words that are the name of a product itself (like ‘Fire Cider’ or ‘Bloody Mary’) are not trademarks, so others are free to use them to describe or identify their goods… There are mechanisms in place for the public to help the U.S. Patent and Trademark Office correct an error like this when it allows a generic term to be registered. It’s unfortunate that the registrants took the more aggressive step of suing Mary, Nicole and Kathi in federal court just because they are standing up for everyone else. We are honored to work with them to free ‘Fire Cider’ so farmers and others can continue to use it as they always have.” So, steps are being taken in that direction.

      *http://www.penbaypilot.com/article/union-herbalistfarmer-faces-100000-lawsuit-over-common-trademark/53617

  2. Thanks for the update. I’m an Intellectual property attorney, specializing in patents, although I am familiar with trademarks. It irks me when I see things like this. I hope the defendants are seeking reimbursements of their legal costs as well as a cancellation of the mark as being merely generic. Thanks for the link to the article. It looks like the defendants are in good hands. Rita Heimes stated the law perfectly.

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  4. Before Shire City Herbals was even a gleam in anyone’s eye…before the folks who started that company were even born, there was Fire Cider. The folks at SCH did not invent it. They are opportunists, and they should be ashamed of themselves for attempting to purloin the work of others.

    • Agreed! Although I can’t say for sure what their process was – SCH’s story is that they developed or inherited the recipe for fire cider independently – it seems to me that they’re showing a remarkable lack of respect for the herbal community, the many small businesses that have been producing fire cider for ages, and for Rosemary and others who have shared this recipe freely.

  5. Thanks for posting on this – what a story! It reminds me of the folks who put s trademark on the term “urban homesteading” – why do that?

  6. Acv and ways to use it have been with me since early 60,s…..Vermont Folk Medicine!
    I have a step by step recipe of the potion to be made at the new moon with onion, peppers, garlic and horseradish in vinegar that i have carried with me for years. I have made it and shared it with many…have only heard the name fire cider the last few years. Thats a good name…sure, get rights to the name but the formula is universal

    • Thank you for your comment, euphoriagoodapple! Yes, ACV and remedies prepared with it are brilliant things!

      To be fair, it is the name “Fire Cider” that SCH has trademarked, not the recipe (which I think would be a patent?) The argument against this is that enough people have been using “Fire Cider” as a generic term (and selling products called Fire Cider, and publishing recipes under that name) for long enough that it shouldn’t be something that can be trademarked.

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