Trademarking Tradition: the Fire Cider® Controversy
[For the purposes of this discussion, let’s use fire cider to refer to the traditional herbal medicine preparation, “fire cider” to refer to the term, and Fire Cider® to refer to the company who have trademarked the term.]
Fire cider is a traditional preparation of various spicy and pungent herbs macerated in vinegar and honey.
photo credit: Fire Cider by The Dabblist, on Flickr
I first became aware of this issue when I read Michael Blackmore’s Facebook post about the trademarking of the term “fire cider” by Shire City Herbals of Pittsfield, MA and the subsequent action taken by Etsy to remove a product with that name from the Etsy store of The Withered Herb, an herbalist out in Washington state.
I checked out the Fire Cider® website and found contact info there, so I wrote the following to dana@firecider.com:
hello,
i read this blog post today:
https://www.thewitheredherb.com/blog/2014/1/16/the-unmentionable-cider-a-response-to-the-notion-of-trademarking-wordsand i wondered . . .
– if the blog author contacted you to request an exemption, or explanation, before making their post?
– if you were involved in the action taken by Etsy, or if they took it upon themselves (e.g. as part of an automated search for trademarked terms in use)?
– if you have a response to the general idea, that ‘fire cider’ is a name (similar to “Four Thieves’ Vinegar”, perhaps) for a medicinal preparation that has a long history and so shouldn’t be subject to trademark?
i recognize you’re looking to protect your investment against large manufacturers & companies, but i imagine there must be some way to leave room for local & small-scale producers.
i’m not an herbal product maker so i don’t have direct skin in the game, but i’m interested in issues like this and some of my students are apothecaries & product makers, so i’d like to have some insight into how these things play out.
be well,
ryn
Meanwhile, I came across this post by Darry Madden on the Fire Cider® Facebook page, which got the most direct response from the company out of several similar posts which appeared yesterday. (I believe all of these Facebook posts are public, so you ought to be able to click right through.) This includes an initial explanation of their position from the company. I think the most pertinent excerpts are these:
Spiced vinegar as an idea has dozens of names for hundreds of recipes. As a business, we can only have one name for our product, and that name is synonymous with a specific recipe and taste. We’ve built our business around that name and in the process built a market for that product. As we saw our business grow, it made sense to trademark our brand name. In the past year we’ve seen several companies pop up, calling a wide range of concoctions “Fire Cider”. The decision to take action was a difficult but necessary one. We are not asking anyone to change their recipe or process, just the name of the product they are selling.
[…]
I did not invent the name Fire Cider, I got that percolating through the herbalist underground, without attribution. I did however come up with the recipe we use, and I’m quite proud of it.
Today, I got an email reply from Dana, as follows:
Hi Ryn,
Thanks for getting in touch. No one has contacted us to ask actual questions, the folks who’ve gotten in touch thus far have mostly seemed interested in venting, not conversation.
So:
-the blog author did not contact us, and your link to that was my introduction to it.-We sent Esty a copy of our trademark recently on the advice of our lawyer, and they removed postings that conflict with our trademark.
-“Fire Cider” is indeed a term from the world of folk medicine that predates our usage of it. What we have done is create what they call “secondary meaning” in the trademark world. This means that to the general public, Fire Cider means brown bottle with a pirate on it that is made by Shire City Herbals.
99.9% of the people I talk to have never heard of Fire Cider or even the idea of a vinegar-based tonic, this is whom I’m referring to above as the general public. Folks within the herbal community seem to not think about the vast number of people who have zero knowledge of herbal healing, and have no plans to learn more any time soon. These are the people I want to reach with Fire Cider, the people I want to turn on to the power of herbal and whole foods medicine. We have given out over 200 gallons of samples in the last 2 years, in person, at craft fairs, health food stores, and the Big E. We have gone through more than 250,000 sample cups, a quarter million! Only a tiny fraction of those samples went to someone who is even passingly familiar with fiery vinegar tonics. We are turning people on, but that takes lots of time, money, and resources. No one else has devoted the time money and resources that we have, which is why we hold the trademark.
I’m not an expert on trademark law, but here are the most salient points as I understand them:
-As I mentioned above, our trademark is based on our establishing a secondary meaning, that is to say creating in the general public an identification of our specific product with the name Fire Cider. We are the very first company to advertise Fire Cider to the general public, and the first to file for and receive the trademark of same.
-Once a company establishes a trademark, they have to police the marketplace and make every effort to protect their trademark. Failure to exercise reasonable diligence in enforcing a trademark constitutes “trademark abandonment”.
-A successful challenge to our trademark on the grounds of trademark abandonment would leave us open to being run out of business by larger and/or better funded players in the natural foods industry.
-Basically, you have a trademark, you use it or loose it.
-As we are a relatively small company completely invested in the success of our sole product, Fire Cider, failure to protect our trademark would be an existential threat to our company.So, we will continue to take reasonable steps to protect our brand and grow our company. Everyone else can continue to make and discuss vinegar tonics under whatever name they wish to use, and more power to them! However, the realities of business require us to respond to anyone selling a product using our trademark.
Best,
Dana
My responses:
As far as I can tell, this response boils down to “we were the first ones to think of trademarking the term, so we’re going to enforce it.”
I have some sympathy for the Fire Cider® folks, here. They have backed themselves into a corner on this one – not only in terms of the fight to legitimize their choice to take action against small-scale herbal product makers, but also in that they’ve restricted their business model to reliance on a single product. It’s hard to see a clean way they could extricate themselves from either mess.
Where do they go from here? Do they double down on their claim to the term/recipe combination, and go after publishers who want to put out another edition of Rosemary Gladstar’s Medicinal Herbs, which includes a fire cider recipe on page 74? Will they ask Mountain Rose Herbs to remove this Craft Your Own Fire Cider blog post and YouTube video?
And what if they want to branch out in the future, try a different recipe on for size? Will they call it Fire Cider® – Four Thieves’ Formula™?
I think it’s deeply unfair to reduce the discussion that’s gone on about this issue to mere “venting”. I’ve seen some articulate and pertinent arguments made by those who feel that this action is inappropriate, particularly the following points:
- This term has been in use for at least three decades (long before the company’s inception in 2011), and probably longer.
- It likely originated with, and was certainly popularized by, Rosemary Gladstar’s teachings and writings (and her recipe, which is very similar to the one Fire Cider® uses, has been published in copyright-protected books).
- That a number of other products were in fact sold in open commerce, bearing the name fire cider, before this company was founded.
It’s a valid and noble goal which Dana espouses: to disseminate this knowledge, get the ‘general public’ fired up about natural remedies, and give them an entry point into traditional healing practices.
But even if they don’t plan to learn any more, appropriately representing the community as one which freely shares its knowledge and traditions is very important. If this is all these people are ever going to learn about herbalism, it’s not appropriate to act as if you invented it, and they can’t get it anywhere else. Herbalism is intrinsically about lots of people sharing, modifying, and adapting practices to their local landscape or the needs of their community. To share something as if you’re the only place it can be gotten doesn’t empower people to take care of their own health; that’s not what herbalism is about. It’s great if they want to buy it from you because they don’t have time to make their own, or yours is of really excellent quality, but they should know, too, that anyone can make this stuff, and that traditionally, everyone did.
The reason this has gotten such a strong response is because it reads like an attempt to capitalize on that very tradition.
These concerns are coming from herbalists and people deeply invested in the community who are making their feelings known about an issue close to their hearts. They are frustrated because they feel this action is disrespectful to their traditions, their community, and their elders and teachers. To dismiss their concerns is to fail to listen to the people whose goals are most closely aligned with those Dana says he’s pursuing.
I feel very confident that if Fire Cider® were to drop the ®, cease actions against local producers, and admit having made a mistake in taking these actions to date, they’d be met with overwhelming support and goodwill from the herbal community – that they would be able to weather the “existential threat” with support from those who can do the most direct, ground-level work to support a company whose values align with their own. This is the foundation of trust and reputation that has made other herbal suppliers and producers successful and resilient; I hope Dana, Brian, and Amy can see the value in that, and take the message to heart.
*
Update 1 – sun.26.jan 2:00pm –
Check out some other articles and resources on the topic:
- Fire Cider Facebook page (note, no ® here!) – a clearinghouse and rallying point for the anti-trademark movement (eta: and join us for World Wide Fire Cider Making Day!) – especially check out this note from Rosemary Gladstar detailing her feelings on the matter. (eta: also her long-form response here.)
- Fired Up, Steph Zabel (FlowerFolk Herbal Apothecary)
- Houston, we have a trademark, Traci Picard (Fellow Workers Farm)
- Revoke Fire Cider Trademark, a petition to the US Patent & Trademark Office, organized by Rad Herb
- . . . and also look at the activity on the Fire Cider® FB page, especially the recent Reviews and ‘Recent Posts by Others’. (eta: though now i’m seeing some complaints about comments & posts being deleted from there.)
*
Update 2 – sun.26.jan 3:00pm –
Fire Cider® has responded with this:
Why And How We Trademarked Fire Cider
I find it unconvincing for all the reasons already presented here, and feel that at best it sidesteps the issues being raised, at worst it presents outright untruths. I am disappointed, but unfortunately, not surprised.
I concur wholeheartedly with this comment from Tony(a) Lemos.
*
Update 3 – mon.27.jan 3:30pm –
First, to get it out of the way: it looks like the Fire Cider® Retail Stores page – the list of stores which carry the product – has been taken down from their website. It does not seem to be a problem with their hosting account, as the rest of the site is active. Possibly this was done in response to the calls to action on social media, which have urged people concerned about this issue to contact those stores directly and register their complaints. I think an explanation is in order for this. (Edit tue.28.jan 10:00pm – looks like this was restored sometime today; good on them!)
There are also recurrent rumours floating around about comments and posts being deleted from the Fire Cider® Facebook page. I’m not sure how to substantiate that; Facebook is a notoriously fickle and mercurial medium. If true, I imagine part of the reasoning behind it folds into the discussion below, about abusive messages. OK, here’s the substantiation, and it is as I thought: “We are deleting posts that are insulting/profane, spam, and blatant trolling. We are attempting to respond to civil discussion in kind.”
In general I am very strongly of the opinion that by operating on the Internet you subject yourself to certain rules of conduct, and that includes allowing disagreement and even negativity to be directed at you, without trying to wipe it away. Your task then is to respond as best you can, defend yourself when necessary, or let your quality stand on its own merits.
There’s also a great difference between moderating the discussion in a venue you control – your own website – and doing it on a social platform like Facebook. Certainly, Fire Cider® has been screening the comments on their blog post about the trademarking – many people have written that they submitted a comment there, but it was never posted.
I have to admit that we’ve screened comments posted here on our own site, when we felt they were destructive, irresponsible, factually incorrect, and damaging to the discussion at hand. That said, it’s only been necessary once so far (not related to this issue), and we agonized over the decision; much more often, we’ve simply approved comments which questioned our motives or our information, and responded as best we could. But we’d be even more reluctant to delete comments in a social media setting, and I can’t condone that action if it is taking place. I think it hurts Fire Cider®’s case and will bring them more trouble than it’ll save.
OK, on the more optimistic stuff. Dana sent me this follow-up email today:
Hi Ryn,
Thanks for engaging with us in a civil manner about the issue of our trademark. I really do appreciate it, especially as a portion of the feedback we’ve gotten has been the opposite of civil. In addition to being called evil, worse than monsanto, and a zesty grab bag of curses, folks have wished for us to fail and be rendered homeless, or alternatively to contract cancer to reflect our dead souls. These are the types of comments that I was referring to as venting and not conversation. I’m not dismissing or referring to the overall discussion as such, just the comments and emails I’ve received that consist of anger, abuse, and little else. I would appreciate it if you would clarify this in your blog post.
We have been quite taken by surprise by the volume, intensity, and tone of people’s responses, and it’s sudden upswell. We are 3 people who were already overworked before trying to respond to hundreds of emails and FB posts, so while we are trying to respond to all civil comments and keep communication open, we just don’t have the time to give every comment a full answer.
Best,
Dana
I’ve seen some comments that put me off, absolutely. Those don’t help anyone. As Katja put it earlier today, we herbalists need to remember that “this is not happening in a vacuum – there are other people watching. We are angry now, and that is not wrong. But let’s really try to stick to the issues and stay respectful: after all, that’s what we’re asking them for.” Nor was she the only one saying so; following close on the heels of the negative comments have come calls – like this one from Steph Zabel, and this one from Lauren Murphy, who was directly affected by an Etsy removal – for a more civil and measured tone in the discussion. I’ve been glad to see those, and also to see the responses to them from Dana, Amy, and Brian, which seem to indicate they’re still orienting themselves and considering how to proceed now that this has been brought to their attention. That is, after all, the whole point of everyone making all this noise!
I also recognize that the sheer volume of thoughtful and measured comments, deserving of responses, would be difficult for any three people to work through in one weekend. That will take time. I have a lot of sympathy for small business owners – I am one. Most all my herbalist friends are, too. That’s part of what has everyone so stirred up.
To borrow one of Katja’s comments again:
Also, I think it’s worth recognizing that your story is the same as everyone else’s. We all spend all summer at the farmer’s markets trying to educate people. We are all working on shoestrings, working after work, doing it on weekends, doing whatever we have to do in service to the plants and to the people. Taking a minute to think about that will help you understand that the community here feels just as strongly as you because they have invested just as much sweat and worry and precious dollars when they’re not easy to come by, they have given away samples and said the same things over and over to people who have never heard of such things. That can help you understand not only the responses that are more emotional than constructive, but more importantly, it might also help you realize that you are part of a larger community. You’re not actually in this alone. We can all work together, because we all have these shared experiences. I really think that making a widely visible statement that you want to be part of the community, you didn’t mean to hurt anyone, and although you feel strongly about your position, you’re also looking for ways with the lawyers to make things better for everyone, I think people would really respond to it. More importantly, I think you’d suddenly be flooded with lots of suggestions and also support. Working together, we are stronger, and the community only wants to hear that you’re working, and that you’re not really wanting to shut people down.
I hope that will make you feel encouraged!
I think it’s fair to say the Shire City Herbals folks are starting to find ways to engage in that dialogue, and I hope we can all move our focus to suggesting and supporting paths to resolution. It would be best to work together on this!
*
Update 4 – mon.27.jan 9:00pm –
Fire Cider® has posted this note on their Facebook page:
Holy wow, we have been totally overwhelmed and caught off guard by the response to our trademark over the last few days. There are only three of us and we don’t want to respond to anyone from a place of fear or anger.
We 100% hear your concerns! You want ‘fire cider’ available to everyone always and we agree with you! We trademarked the phrase with the intention of protecting our business from bigger players in the natural foods industry, not to persecute folks making home remedies and selling their remedies on a small scale. We sincerely apologize for the confusion and fear this has created. Currently, ‘fire cider’ is not a generic term as recognized by the USTPO. Fire Cider was not protected in any way before we registered it. That is why our application was accepted and our trademark granted.
So, what can we do? How can we safeguard the traditional use of the phrase fire cider, while at the same time protecting the businesses we have all worked to build? We need to consult with some professionals to figure out our options. We are all going to need to work together to make something positive happen. Please give us two weeks, til Feb 10th to give you a full update on what our all our options are and where we can go to resolve this in a positive way.
Thank you kindly, Amy, Dana and Brian
This is great turn of events, and I’m hopeful we can all work together for a positive resolution!
*
Update 5 – tue.11.feb 10:00am –
Well, perhaps I was too optimistic. Fire Cider® has posted their “resolution” on their Facebook page. They certainly seem resolved.
The long and short of it is, they’re saying “bring it to the US Patent & Trademark Office.” If we take it at face value, this may mean they feel confident that their mark will stand up to a challenge, or they may believe there’s no safe way for them to extricate themselves from the situation under their own power, and that an external effort is required.
I find it reasonable to imagine, though, that if they were to go to the USPTO and say, on the record, “it looks like this mark shouldn’t have been granted, it turns out to be a generic term after all” – then surely the term would go on record as a generic, and so all users would be protected from megacorporate usurpation in the future. But, I suppose that’s expecting a government bureaucracy to operate within the bounds of reason, so I’m willing to believe it’s not that simple.
I do believe an organized challenge of the mark, filed with the USPTO, is the best course of action, and I trust one is forthcoming.
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I didn’t know it was a secondary trademark. My understanding is that they can only stop people who duplicate both the name and their label with a secondary trademark , but obviously they think that they have more rights than I think that legally allows them.
also, check out Steph Zabel’s thoughts on this topic, here: Fired Up – FlowerFolk Herbal Apothecary
I am continually surprised by the US trademark offices willingness to allow the entire English language to be trademarked. It seems counter productive to take terms in use for many decades and allow them to suddenly be controlled by a single entity. While this company may have invested money selling fire cider to non-herbalists, the only protection that should reasonably be allowed is those measures that protect their formula, the design of their label and their company names, all of which are unique to them. For them to attempt to expand their reach beyond this is unwarranted and quite possibly not a right guaranteed them with a secondary trademark. all herbalists should be able to sell their own formulation for fire cider and use the term common for the industry. Thus rosemary gladstar’s fire cider, mountain rose fire cider, Ellen herbalists fire cider should be equally valid to protection. I say all this as a non intellectual property lawyer so I can easily be wrong. However, there is a certain logic to patent , copyright and trademark law and this make far more sense than what the company in question is representing. I do plan to ask the three IP lawyers I rely in for legal opinions in such matters. I’ll let you know what I discover.
thanks! i’ll be interested to hear what you find out!
What next!?!?!?!? Simple solution….make your OWN Fire Cider. Er, I mean….Volcano Cider, Holy Toledo Cider, Mexicali Blues Cider, Flame Cider, Pele Cider (having lived on the Big Island, I’m rather partial to that last one).
No matter WHAT you call it, it’s easy & inexpensive and there are many variations on the recipe. You just have to plan in advance, so it’s *ripe ‘n ready* when you need it most. For us here in the north east, that means making it right around August 1st, so it’s ready to be strained in September.
This way you can put your own good mojo into it (I swear by this—singing the tune “Got my Mojo Workin'” every time I shake it up.
But seriously folks…..the whole point of herbalism is to empower & educate people to learn & realize that *YOU Yourself are in Control of your Health*. Hmmmm, that kind of has a catching sound to it…maybe I’ll trademark it!
My (very cynical) take on the whole thing is that it’s all about the pursuit of the Almighty Dollar. Oh, one more thing: IT IS “LOSE”, NOT “LOOSE”! “L O S E”! (Sorry, just had to get that out of my system. That word sets off my OCD something fierce! Carry on! ) 😉
Working with herbs should be done with good energy and intent. It is sad to me that getting “ownership” to a name is more important than being supportive of others with the intention of healing people and the planet.
I can understand a bit more, after seeing their video,of what they are trying to do but they are messing with a group,that is herbalists and herbal medicine makers and teachers, who generally have a stronger sense of community than they have of commercializing their products. Arguing about a patent on tradition is one thing but in this world of overwhelming money hungry entrepreneurs, having a little common sense would sure feel like a breath of fresh about but I live in a fantasy world.
This link is a word doc, sorry, but right from the government website… these are non-profit orgs that help with trademark dispute. Simply discussing with the company is not going to get anywhere. Herbalists and established herbal companies will need to unite in order to squash this.
If you are confident in your recipe, you should just trademark your name in front of the words Fire Cider…like Sally Jo’s Fire Cider or Bob’s Authentic Fire Cider. Seems like the right answer to me.
I consider their defense of the “trademark” fir cider to be morally corrupt.
Why not trademark it as “Dana’s Fire Cider” and avoid the controversy? As Fire Cider refers to a traditional product like say yogurt (okay probably not a great analogy) rooted in folk tradition, it is short sighted and a wee bit arrogant to claim ownership. And stir the ire of the herbal community- there’s room enough for everyone’s fire cider if they choose to market their own and encourage healthy commerce – and community! Just like there is no single “apple sauce”- maybe a better analogy. Let’s play fair 🙂
Thanks for sharing this! I had no idea that someone had trademarked the term “fire cider”, though I have heard of the company. This comes shortly after I learned that Thieves® Oil is a trademark for an essential oil based on the Four Thieves Vinegar. (At least they left the Four out and it’s not a vinegar…)
I agree with what Jeremy said above about trademarking their name in front of the words Fire Cider. This is something I have often seen and it makes perfect sense to me. Then it’s branded as yours, yet the generic term is left open for use. Because in the end, it is a common term for something that can be made at home. It feels a bit like trademarking the term Borscht, because you made some particularly good borscht and didn’t want anyone else to take that from you. And sure, maybe not everyone is familiar with borscht, and perhaps yours is amazing and you are turning the general public on to it, but now all the people who make and sell borscht have to call it something else, like beet soup, which doesn’t sound as cool.
Analogies aside, I do think it is a move made purely for profit. I like to think that being a part of the herbal community means sharing knowledge with others to carry on a centuries old tradition. By slapping a trademark on a traditional recipe you are limiting others in the community and those who may wish to learn more about it. Yes, they are bringing a product to a wider audience who may be unfamiliar with fire cider, but so is The Withered Herb and the many others who produce fire cider for sale, trade, and personal use. As they said, they were not the first to produce this vinegar, nor will they be the last. Yet now that they have trademarked this highly common term they are limiting those who have come before them and those who follow.
Already the herbal market is saturated with regulations. It is incredibly difficult for small businesses, crafters, and herbalists to slog through all of the regulations, laws, and rules. Now this company has added yet another thing for the rest of us to worry about. If they truly cared about sharing the knowledge of herbalism and the benefits of herbal tonics, such as fire cider, they wouldn’t trademark the term for their sole use. They would have found another way to market and trademark their product in a way that allows for the free exchange of knowledge and handcrafted herbal medicines.
They’re operating based on a flawed understanding of trademark law. EFF writes about this issue here in an article called “Trademark Law Does Not Require Companies To Tirelessly Censor the Internet”:
https://www.eff.org/deeplinks/2013/11/trademark-law-does-not-require-companies-tirelessly-censor-internet
Fire cider is a lovely kitchen remedy that I believe was first *put into the public spotlight* by Rosemary Gladstar, who taught it to my teacher, who taught it to me. I have handouts using the name, as does my teacher from earlier era.
I’ve heard stories of people’s great grandmas making it, so as I understand it, it’s a very old folk tradition with an introduction to the mass public in the 1970’s.
I am sure Rosemary has made thousands of gallons and sullied as many sample cups sharing the recipe she calls: Fire Cider.
To those looking at a first commercial introduction of this type of formula, Cyclone Cider I believe was the first on the market. I believe this might have happened in the 70’s or early 80’s. www.https://cyclonecider.com/
And so these facts have most probably set a legal precedent that the name Fire Cider attached to a vinegar extract of herbs is, and has been, part of public domain for a very long time. This predates any trademark date.
Suing hundreds, if not thousands of wee herbalists isn’t very practical and last time I checked, one can still not get blood from a turnip.
I agree that it was a quick move for profit. I also hope all those Herbalist whom shared there recipes both freely and publish police this company and if there recipe is being used exactly like there that the herbalist push the trademark company to drop this company in question.
Thank you so much for posting this. This is the first time I’ve heard. I’m completely disgusted. Just so mad that people who are supposedly part of our (herbal) community would steal this from us all for their own profit.
I’m so surprised that USPTO let this go through, that I even went to search for it to make sure they really owned it. How did their agent not see the hundreds of references to “fire cider” on the internet before they gave them that name?
Is there anything we can do about it?
yes I agree they should not be taking the whole recipe name- it was just like someone in the past taking the name nature religion. why not trade mark the recipe just like the old patient medicine folks did in the past– this is Chief xyz Fire Cider– then there is no rip off of the historic product that anyone can make and should be able to call it by it’s traditional title. So if they dont change it I guess we could recommend boy cotting it — and sort of cold shoulder them at herbal stuff. 😉
(just a quick note for anyone posting comments tonight – if it’s your first time commenting on our site, your comments will go in a moderation queue. i’m headed to bed, but i’ll make sure to go through and approve anything left here when i get up in the morning.)
Forgive me, if I’m wrong, BUT wasn’t there a product made by Bragg’s sometime in the 60’s or 70’s named “Fire Cider”???
What he’s getting at in the letter is that they don’t want anyone SELLING a product called Fire Cider. He doesn’t say you can’t post a recipe and call it Fire Cider. Maybe you can call it Fyre Cyder. 🙂
I’m gonna have to snatch a few recipes before he says we can’t even do that.
This was a dumb move by people far more interested in cash than they are interested in sharing…well anything. These people are not part of the herbal community they are simply wannabe bussiness people. And they are not very good at that or they would have realized that the negative press they are getting just destroyed all of their marketing efforts. (So the hits you are getting on your website and video are not a reason to celebrate . Trust me on this) they would also realize that the cost of legal fees to defend this( and they will be huge and you will not prevail in court) is going to destroy the cash flow they are so anxious to protect. Again just a dumb thing to do.
So can Etsy stores name it “The Tonic Formerly Known as Fire Cider”? Because I think that would be a pretty good comeback if they can’t win the legal battle.
Right along the lines of the Dervaes trademarking ‘urban homesteading.’ I’ve known about fire cider for years. I’ve never heard of this company that trademarked it. I grow weary of these types of people/companies.
Ahhhhh! The corporatization of America! This is why it is important to start writing and voting in community
Bills of rights. So for now, change the spelling, FYRE CYDER. And remember how karma works.
Jeremy, you are brilliant. perhaps a Change.org petition to request them to do that…
I’m pretty sure (well, not really, since I don’t know the laws very well!) people could start a petition or lawsuit showing all the published things with the words Fire Cider in them, proving that nobody could take that copyright term. Sounds like an oversight on the part of those who granted the copyright!
We live in an age where greedy humans patent life itself. Patents, like class structure, may be meaningless in the long run, but what damage they do in the short run! Vandana Shiva, among others, successfully challenged a major drug company who had patented Neem — any inspiration there to protest this current theft of tradition? If not, we can expect the rest of our wonderfully-named traditional herbal compounds to leave us, one by one.
Sign the petition to stop this!
https://www.change.org/petitions/united-states-patent-and-trademark-office-pto-or-uspto-revoke-fire-cider-trademark
Thank you Ryn, the response from Dana shows a total lack of understanding of the larger meaning of herbalism, the people’s medicine, where bringing the healing power of plants is typically done in a generous, open and caring community. Utopian maybe but I relish my herbal circles where that philosophy exists and find it sad that the legalized, commercial world is continuing to encroach on it. I also studied with Rosemary and learned to make this recipe years ago and there is nothing proprietary about it. If anyone should trademark the term is it her, but I bet she wouldn’t do that 🙂
I posted this to their Facebook page and will also send throughout the herbal communities I belong to, maybe public pressure will get them to reconsider.
Why do herbalist who have been using the name Fire Cider for generation have to suddenly stop calling their product Fire Cider, when that is what it is. We should not have to come up with a new name for our product. How many companies make “Baked Beans” “Apple Sauce” “Minestrone Soup” should these words be trade marked? I am not opposed of the company trade marking the name of their company, but I am opposed to them trade marking the product “Fire Cider” That would be like a chef saying to the rest of chefs, you can no longer call your soup Minestrone. I don’t see how that could be legal, so I do not see how this can be legal. The trade mark commission needs to know this.
There could be a silver lining here. 1. They only make one product so they have put all their eggs in one basket. 2. They are a newer company (2011- I believe). There’s a very good chance that they will not be around forever, see point #1.
What these people did was not a smart move. Consumers who are purchasing products such as Fire Cider do have an interest in herbs and natural healing and have most likely heard of or read Rosemary’s books. This company strikes me more as a bunch of bad business people than herbalists.
My guess is that this all blows over and they just crawl back into the hole from which they came. This is a battle they will never fully win.
Good luck to the other companies who are also making fire cider.
Regarding the posts about the openness of the herbal community ~ I have seen so much cutthroat crap in the herbal community over the past 25 years, it’s not funny. People stealing the hard work of others happens all the time in the herb world, without regard to the hard work that people have put into their website copy, formulas, names, etc. It doesn’t matter that people have been calling the concoction fire cider for 1 month or 30 years before Dana did. What matters, legally, is that he trademarked the name before anyone else did. That doesn’t mean in casual conversation, people can’t call their product Fire Cider. It just means that they can’t sell it with that name. Make it all you want, people. I make it, I teach others how to make it. When selling it, make up a catchy name. Fire Cider isn’t so incredibly fantastic that that name will be the only name to which people will be drawn. Look at the plethora of hot sauce names out there. Get creative. Do YOUR work.
The photo you are using in this article is mine. Will you please credit?
As mentioned in previous posts, I think the simple solution would be to just add their name to the title of the product! This is something their legal advisors should have discussed with them since it is a product that has already been developed, they just added a few things to make the recipe their own. I agree with so many others, that would be like having only one variety of soap, or one variety of oatmeal or even only one variety of Merlot, (the last one being a definite shame!) I think they had better take a step back and rethink!
hi Becca,
absolutely! i did credit you in the alt & title text originally, and the photo’s a link to your Flickr page – i’ve now added it to the photo caption too. let me know if you want the wording altered.
I really appreciate it, ryn. You act fast! I’m glad I caught this photo in my newsfeed because this story is incredible. Thanks again!
By their reasoning any person can trademark the words rhum or rum and make and market their own formulation.
I wonder if in reading all of the outrage en cited by his decision if Dana is reconsidering his choices or if this was all part of the grand plan to create a buzz around his product. All press is good press in capitalism right? I’m struck by this on many levels, trademarking a folk medicine is a form of appropriation one which goes against the core of herbalism and wise woman healing.
I’m sure even Rosemary Gladstar herself would not be so bold as to claim fire cider as her own to garner profits and cast aside the many who create it. Rosemary popularized this recipes close to 30 years ago but it’s origins can be traced back to small villages and towns around the globe.
If you look at ancient texts and research the origins of any folk remedy you can trace many dangling roots back to a plethora of origins. Hippocrates (age of Pericles 370BC) touted daily doses of a similar vinegar sweetened honey beverage for health, longevity and overall vigor. In Rosemary’s book Medicinal Herbs you can clearly see the recipe’s similarity to The Shire’s Blend. What strikes me more than the trademark is the audacity to popularize and claim ownership of something so rich in folk culture and tradition. I liken it to my love of the popular beverage Masala Chai which dates back 5000 years to Siam, India and other regions of South Asia. My first introduction to the milky sweet drink had me swooning to create my own GLobally inspired version which others have spun off on over the years. It’s appropriation vs reproduction based on reverence. I love this beverage and therefore created my own version to share and enjoy but had I chosen to take my admiration and pirate the rights to it’s inception and profit from my ignorance it would be another story. I would hope that in the course of the outrage by the herbal community Dana would decide that his misstep all be it a human one, is a slippery slope stacked on a house of cards. A retraction and and apology would go a long way toward faith being restored, and the continued success of his fledgling company. We cannot pick and choose which traditions and cultures most suit our needs and wants and simply take what we desire for the pickings, or the profits. This has been done, it’s played out and has been like an 80’s one hit wonder, so too have the days of appropriating for profit. This recipe was popularized by one of the grandmothers of modern herbalism, a wise woman and a spokesperson for herbal healing, longevity and empowerment through health and wellbeing. Shire City Herbals’ choice goes against and more importantly beyond the folk and common person’s tradition by trying to further capitalize on something so sacred as a fire cider recipe. The recipe in and of itself is not the problem, but taking something culturally and regionally known for it’s healing properties and saying by way of a trademark that only they can possess the rights of distribution for profit espouses the bigger demon in the room, Cultural Appropriation. Perhaps some will see this as stretching because no one culture is responsible for Fire Cider or herbal healing. It a cultural creative that all who practice this type of wort cunning, witch doctoring, wise womaning, herbalin as my 5 year old likes to call it that we abide by the unwritten rule of sharing and crafting medicines and knowledge with the community in mind and holistic empowerment through wellness as the goal. Folk traditions and herbal healing have always belonged to the people, first and foremost because they were available, accessible and in many cases free to the common person. Trademarking or claiming rights to any product or folk remedy goes against the core foundation of herbal healing and herbalism as a system of the wise crafters among us. As a community herbalist and a business owner I walk the fine line of sharing my wisdom about plants with people and also needing to support myself with the craft, but the sharing of the green world is why I make my living at what I do. It is a personal topic to see someone taking their business to the extreme, especially someone who is from Western Massachusetts and knows how strong and tightly knit the community here is around things like food security and holistic wellness.
Even the creator of the now trademarked fire cider would attribute his introduction to the remedy to an MD in Beckett, MA suggesting he make a version of it for his bronchial symptoms. By the very act of folk wisdom he himself was introduced to a form of this remedy.
(Source Boston Magazine May 2013)
I’m waiting to see how this plays out, and I am overjoyed to see all the many herbalists stepping forward in outrage, solidarity and soul-ution based idea’s for Dana.
I’m going to go pour myself a shot of my own schisandra turmeric fire cider, which I might rename Shire Cider and bottle on up and take to market as a play on my disdain for the trademark.
Stay Tuned ya’ll, interesting times we find ourselves navigating, interesting times!
I too have learned this reciepe from Rosemary Gladstar, one amoung thousdans whom I’m sure have. It just strikes me so as I just gave two bottles of it away on the 24th of January, hoping to help pass on the wisdom of simple remedies to others that want to make a difference in their and their families lives. I feel certain there is enough communtiy to help turn this issue around and bring more awareness to a vast communtiy connected far and wide. I am from northern Canada, and all of my family love this remedy!
i actually hadn’t heard of that thing with Young Living until today. i’ve been wondering where else this is going on.
i think i’ve seen some comments from Kristi Shapla today that indicated there’ve been problems like this in the soap world for a while, too. not sure if that’s come across your table.
also, yeah, borscht sounds way better.
on a completely different note, i somehow hadn’t seen your website until today – it looks great! i love your bee project!
As full time, working community herbalist, I find it very interesting that other herbalists are so upset about this. I mean, if an herbalist wants to call her organic, properly made product “Nerve Tonic” and wants to distinguish it from some possible crappy products of the same name, why not trademark it? Someone else could call theirs “Soothing Nerve Tonic. etc”. If you wrote a book entitled “Herbs for Healing” that had great herbal recipes with your own special touch, wouldn’t you want it copyrighted? Even though it has a general title, you would still want people to be able to easily find yours, not another herb book by the same name.
People who state that it is negative to go after “the almighty dollar” are often enough the same who shop at Walmart and other box stores because they are cheaper (it’s worth destroying the environment and economy to get these “adorable shoes, omg”) ), thus sending all their money to China and destroying local economy, and at the same time purchasing clothes made of polyester and acrylic (ie plastic) which will never ever ever biodegrade, and then complain about how “everyone else” is destroying the Earth. How many of the judgers, who think “corporations/money/rich people are evil”, eat every single thing local? Don’t use a cell phone whose towers are killing off birds faster than acid rain? Don’t buy from Amazon.com? Bring home their produce in a bag that is not plastic? Don’t buy any plastic at all? Make yourself aware of what foods are GMO and absolutely don’t buy them ever, no exceptions? Buy only used clothes, made of natural materials? Take the bus, ride their bike? I find it amazing that people find it reasonable to judge a small company for their necessary legal choices, while giving money everyday to huge corporate conglomerates. The “99%” are the ones CHOOSING to give all their money to huge corporations. This business we are ranting about is a small business!
We all are caretakers of the planet, but if someone wants to sell a product of their own recipe, then they should. Call your cider whatever you want. Maybe instead of sending bad energy (i.e. hexing) toward other people who use plants to heal, you could do something about all the patents Monsanto owns on plants, and the subsequent Indian farmers who are committing suicide because they can’t feed their families using those Monsanto seeds. There are so many real issues we could get together to change, that would really change the world, instead of petty squabbles that just waste time and energy.
We have been using this and other vinegar based remedies for decades,for someone to market a corner, claim it for their own…speaks for itself.
I own a shop in California that was the first to stock Fire Cider by Shire City Herbals west of the Mississippi River. 99% of folks that come into the shop have never heard of anything called “fire cider”. It is extremely popular here and I feel wonderful selling a product that is beneficial to one’s health. Many of those customers who have never heard of it, regular folks that are not in the “herbalism” world at all, have since made their own version of it as well. Dana & Co. (the owners are truly wonderful people) have done more to share fire cider with the world than anyone else before them. They have invested lots of research, money, and hard work into not only making a great tasting, consistent, safely made product but sharing this concept of fire cider with more people than ever before. They have every right to trademark “Fire Cider” and stand by their trademark.
Many people commenting on this blog who are upset that they trademarked the term “Fire Cider” for their own product because of “the tradition of sharing in the herbalism community” are totally missing the point. They were extremely SMART to do this. Anyone who makes their own version of fire cider can call it that. However if they decide to SELL IT (like on Etsy) they just can’t sell it under the name “Fire Cider” because Shire City Herbals trademarked it first.
As they say on their blog (https://firecider.wordpress.com/2014/01/26/why-and-how-we-trademarked-fire-cider-2/) “We are not suing anyone, we don’t want to sue anyone, and we don’t have any plans to sue anyone. We are not chasing down herbalists, we are not demanding people change their recipe or ingredients, we are only asking those herbalists selling commercially to respect our name and trademark.”
This reminds me of the couple that TM’d the two words ‘Urban Homestead’ .. and from what I recall .. got away with it. There should be a name associated with these terms that people want to TM instead of upsetting the apple cart that has brought them business.
addendum…
I certainly agree that it is not a very creative name, and if the owners simply put their name in front of it, it would make a lot of people feel better, fast. Kind of like using herbs.
yay i like this idea…pirate cider?
On Facebook someone said Four Thieves is trademarked too, though I haven’t looked it up to verify it yet. I guess sooner or later everything catchy will be trademarked! haha.
Yeah, a while back someone trademarked the term “soap loaf”, which is simply the term for an uncut block of cold process soap. I’m not sure what ended up happening with it though. I know a lot of people were upset by it and wanted to challenge it. I’m sure other issues like this have come up before too.
Thank you very much!! 🙂
So let me see if I understand the few people who don’t have a problem with this. One is a store who is selling their product ..no special interest there except maybe no need for additional competition. And a couple of others whos main selling point is “that this is ok because no one else did it so that makes Dana right” ARE YOU FLIPPING KIDDING? By that logic we should all be thrilled to hand over all the rights and dna to every herb out there to Monsanto. After all they were the first to think of it. Give me a break. Oh. And just for the record anyone who is dumb enough to announce that dana has promoted fire cider to more people in the world than anyone else….well not much thought went into that statement so here is my short answer~ you are wrong very very very wrong.
For decades, recipes and processes have been stolen and claimed by so many people. This is no different. In this day and age, it’s all about the Benjamins not ethics. Think I’ll jump on the same band wagon, put a name in front of “Fire Cider” and cash in while the getting is good. However, I would never try to corner the name of a product without adding to the name and ingredients. Taking an ancient recipe, claiming it and capitalizing on its original name is disrespectful to the ancestors who created it for all. Thieves always reap what they sow. I wouldn’t have any heartburn with the issue if they had just put a person or company name in front of the word. Enough said. Not whining or venting, just saying!
Let’s not forget that Rodale has trademarked Organic Gardening!
I have a new thought on this matter. I don’t know the company owners personally, so I won’t attempt to assume what their motives may have been or how they feel about all of this. I’m sure they’re nice enough people who are just trying to make their business flourish. However, I do stand by opinion that things could have been handled differently.
Now, I understand that they wanted to trademark Fire Cider to protect their product and that they want to bring this product to a broad audience. I assume they intend to distribute their product in major retailers (if they aren’t already). Which brings to mind the case of brand name products and said names becoming synonymous with the products themselves. Some examples would be Kleenex, Band Aid, Q-tip, Jell-o, and Cheerio’s. All of these products are so ingrained in our minds that the brand names are often used interchangeably with or instead of the product name. No one ever says “adhesive bandage”, we all say Band Aid, and gelatin is often called Jell-o, even if it isn’t Jell-o brand.
So why not take this Fire Cider and turn it into a household brand name? Obviously this can’t be predicted or forced, but if their product is the most widely available of its kind in main stream retailers, I imagine it will be at least somewhat successful. Perhaps they could call it something like Shire Cider, trademark it, and include a non-trademarked generic description of the product (fire cider) just like other companies do. (A Kleenex box always says “facial tissues”). Then if they market the product well, make it available to a large audience, perhaps Shire Cider would become synonymous with Fire Cider, while still leaving the term fire cider available to other companies for use.
This, to me, would speak much more to the product’s quality and would be a better marketing tactic. Then again, I don’t have a background in marketing. But to my thinking, this might be a better approach that could benefit everyone.
[…] latest excitement surrounding the trademark controversy of the term “fire cider” has given me some pause. The conversation got pretty heated on […]
The reason trademark law prevents the trademarking of ‘generic’ names is to prevent people from trying to steal a common good for their own financial purposes. The people at Shire City new that the name was generic, and went ahead with an attempt to claim it as their own. There is an ethical issue here.
The people at Shire City clearly know they are in trouble, and this is why there are trying to claim ‘secondary meaning’. It is a weak excuse, and clearly the advise of a lawyer trying to manipulate the situation.
As a policy major with some experience in administrative remedy (ie – seeking a cure before legal action is needed), I would propose a course of action. Compile a list of herbalists (particularly ones who have a company)who are willing to submit a letter seeking administrative relief, who have either been harmed by this action, know the history of fire cider, or who are just deeply offended.
Once a stern, yet respectful letter has been drafted, submit it via the policy of the USTPO (submit with the Secretary of Commerce, and State agencies as well). The USTPO policy is as follows:
“In order to serve a complaint, summons or Notice of Appeal on the United States Patent and Trademark Office (“USPTO”) or on the Director of the USPTO or an employee in his or her official capacity you must serve as follows:
A. Any summons or complaint to be served in person or by registered or certified mail or as otherwise authorized by law on the Office to:
Office of the General Counsel
United States Patent and Trademark Office
P.O. Box 1450 Alexandria, VA 22313-1450
B. Service by hand should be made during business hours to:
Office of the General Counsel
United States Patent and Trademark Office
Madison Building East, Room 10B20
600 Dulany Street
Alexandria, VA 22314
The Office of the General Counsel may be reached by telephone at (571) 272-7000 during business hours.”
This is fascinating from a sociological perspective. The spouse of a PhD sociologist once told me that there are studies out there about sociological “brackets” going after their own instead of the Goliaths out there, due to the fact that they, too, hope to be a Goliath one day. Upon hearing of this fire cider controversy, I thought of what he said. This is it! What’s interesting in this case is that the herbalist community commits to sharing and serving their bioregion or direct community. What this company aspires to is sharing(selling) it nationwide (as seen from a Californian writing in). The ethics don’t line up. There’s the herb community and then there’s the small business hoping to grow at what looked like any cost. They might reconsider, but do they understand the ethics of the herbal community? No one trademarked before because herbalists don’t do that — it’s not who they are. I do think this small company has the potential to be a conduit between the two communities (herbalists and “public”) and “spreading the word”, but going after herbalists (and Etsy) instead of changing their own name to make them more distinctive misses the point of who everybody is and what people’s goals really are. And it’s possibly missing some marketing finesse. Blind ambition? Lack of respect? Lack of understanding? Perhaps. Hopefully we won’t all bring each other down. There’s an opportunity here for mass awareness of an approach to staying healthy — once the name gets fine-tuned.
SIGN THE PETITION!PASS IT ALONG!
https://www.change.org/petitions/united-states-patent-and-trademark-office-revoke-fire-cider-trademark
PLEASE SIGN AND PASS ALONG. THANK YOU!
https://www.change.org/petitions/united-states-patent-and-trademark-office-revoke-fire-cider-trademark
It was not theirs to own.
They are mass producing this product. They are not herbalist. It is clear to me you don’t know anything about the history of this tonic.
They are doing to thousands of people what they didn’t want to have happen to them.
I think a pirate on their lable is so appropraite. They are nothing but opportunist thieves.
And their lawyers are laughing all the way to the bank!
https://www.change.org/petitions/united-states-patent-and-trademark-office-revoke-fire-cider-trademark
Let’s face it…the folks at Shire screwed up and hoped the herbal community wouldn’t organize to stop them. They were wrong. Give it up Shire.
Essiac is also a registered trademark yet others continue to use the term commercially. I really think that many herbalists don’t understand trademark law and this is a big deal over nothing. Just like Organic Gardening is a trademark and yet others continue to use the term.
I plan on continuing to use it. The challenge is when people want to be able to continue selling it in marketplaces like Itsy, they are being denied that right.
It’s totally messed up. Plus I wonder just how effective their product is as it’s massed produced. I can’t see them allowing the herbs to meld with the vinegar for months at a time.
Unfortunately, if you sell “fire cider,” since it is trademarked, you may be harming your own business as it will be considered a counterfeit without proper labeling. You need to contact a trademark attorney before you embark on doing that.
[…] and natural medicine. And by doing so, they claim they’ve given this traditional spicy elixir a second meaning or “added value.” But, how can they make such a […]
[…] Trademarking Tradition: the Fire Cider® Controversy (yeah that’s me mentioned in the beginning of that post because I was one of the earlier people talking about the issue to bring it to folks attention…) […]
Hey! I was going to use Pirate Cider.. I better go trademark that right away!
I like the idea of a “fiery cider”.
Good thing salsa has never been trademarked. Same thing.
[…] subject abound. Most notably, Ryn at the Commonwealth School of Herbal Medicine in Boston, MA wrote a very detailed account, including responses from Shire City; herbalist Steph Zabel of Flowerfolk in Somerville, MA wrote a […]
Could anyone tell me where I may purchase it ….but not the company in question…..
I made some some time back and wife bout run me out of house…
Help please
Sid,
Herbal Revolution sells a fantastic version. check out their elixirs too!
I agree that an organized effort to challege the trademark is the best option. It would really suck for them to remove the trademark and then have, I dunno, GNC trademark the name.
You shouldn’t be allowed to take a traditional name for something and trademark it, thus depriving others who have already been using that term of their natural rights to do so. It is basic theft of common property.
In the music world, you can’t do it. Traditional songs are traditional songs, you can create a derivative work derived from traditional material but you cannot copyright traditional material and pass if off as your own.
However in so many arenas it just seems you can get away with putting a fence around anything that doesn’t appear to have an owner and declare it yours. The company are clearly in denial. They took a name that was originally popularized by someone else and claimed it as their own. Hence the negative reaction. I call it theft.
[…] https://mountainroseblog.com/fire-cider/ https://commonwealthherbs.com/2014/01/trademarking-tradition-the-fire-cider-controversy/ https://www.punkdomestics.com/category/tags/fire-cider […]
[…] can a company claim to own a phrase its owner admits she copied from other herbalists – and then sue someone else for “copying” it? There’s a […]
On deleting posts.. They (Fire Cider®) were deleting posts because the posts were abusive. And on the non trademarked fire cider Facebook pages- my posts, which were neither angry, malicious, or abusive, but rather posed as another perspective, were deleted. And then I was blocked from posting again. An herbalist friend told me she was blocked from posting on the non trademarked pages as well after she questioned whether the measures being taken were actually necessary.. that it seemed almost militant… So the accountability of a public forum holds on both sides of the matter.
On your last point of why they can’t ask the USPTO to make it a generic term.. bureaucratic offices don’t really function in this way. If SCH were to give up their ™ citing it was a generic term, the office would not identify it as so. For all intents and purposes, for the USPTO office, it’s like a company making up a word, trademarking it, and then saying, actually.. it’s generic. Another group would come in and ™ it all over again. (And the reality is, another group tried within this past year).
There was another suggestion of giving it over to a trust so it could be protected and everyone could still use it. This is not a viable option because part of the ™ is to protect it with due diligence. That means (IN THE COMMERCIAL SETTING), asking others with the same name to change their name.
This, however, does not mean the tradition of fire cider is trademarked. It can still be passed down from generation to generation, imparting the goodness of whole foods medicine to the people as the people’s medicine. (you can even call it fire cider) But with the exposure that Fire Cider® has brought to the general population, it might actually become the people’s medicine. Instead of the herbalist people’s medicine.
And the part of their letter that suggests taking it to the USPTO… They did not say that out of defiance or digging in their heels.. They actually mean it. The only way to make it a generic term is through that office. It is the only compromise that is actually a compromise and would benefit everyone. Then they could in fact ™ Shire City Herbal’s Fire Cider.
Trademark registration is a lengthy and expensive process, taking well over a year to complete. One phase of this process is checking to see if the trademark application name conflicts with an existing name as determined by the USPTO. You can at this time, challenge a trademark application if it conflicts with a business name or logo that you posses. Since you have missed this window of opportunity but can still use the name, “fire cider recipe”, and can also trademark a business as “So-and-so’s Fire Cider”, I don’t understand what the problem is?
[…] “Herbalism is intrinsically about lots of people sharing, modifying, and adapting practices to their local landscape or the needs of their community. To share something as if you’re the only place it can be gotten doesn’t empower people to take care of their own health; that’s not what herbalism is about. It’s great if they want to buy it from you because they don’t have time to make their own, or yours is of really excellent quality, but they should know, too, that anyone can make this stuff, and that traditionally, everyone did.” ~Ryn Midura […]
[…] Common Wealth Herbs blog post […]
They produce their “health” tonic in PLASTIC hoses and PLASTIC bins. Yep! That’s what I want in my remedy!!
[…] projects include her Heavy Nettles pop-up restaurant at St. CeCe’s Pub, and her series of fire cider skillshares at Brooklyn Street Local. She also holds the distinction of being the only person in […]
[…] is going on. Others have written about it quite eloquently and with much grace. I encourage you to read the reactions, sign the petition, join the community conversation and the worldwide making day […]
All Shire City needs to do is NOT enforce their TM. That is essentially let people use it, reference, sell product with it. Then it becomes a generic word. It’s that simple. No need to convince the USPTO of anything, just let it go.
[…] abound. Most notably, Ryn at the Commonwealth School of Herbal Medicine in Boston, MA wrote a very detailed account, including responses from Shire City; herbalist Steph Zabel of Flowerfolk in Somerville, MA wrote a […]
When I learned about the fire cider controversy, and after verifying that the issue was exactly as it had been presented here and elsewhere, I went to the Shire City Facebook page. I posted a polite comment expressing my disappointment with their position and briefly explained why I thought they were on the wrong track. I began the comment, by the way, by saying I was pleased they seemed to be making a popular, high-quality product.
When I checked back, it had been deleted. So their definition of “abusive” seems to be “anything less than completely positive.” it proved to me that they were not interested in a fair and ethical business model.
I am super late to the party, but Ryn, I admire your patient & thoughtful examination of the topic! Really appreciate you taking the time to explore the issues here and share them with us and to also compassionately express/explain/encourage a respect of ethics. Really cool. Thanks!
It would appear that the Trademark Office merely responded to the trademark application assuming what was stated in it was accurate. It would also appear many people back into antiquity have used the term Fire Cider commercially and privately and have common law rights to that use which were perfected prior to Shire City asserting a secondary meaning claim. It is similar to a word or phrase being in the public domain under common law principles. Read short blurb at this link https://www.uspto.gov/faq/trademarks.jsp#_Toc275426712:
“What are “common law” rights?
Federal registration is not required to establish rights in a trademark. Common law rights arise from actual use of a mark and may allow the common law user to successfully challenge a registration or application.”
The term “mark” includes both a graphic (logo) as well as words or phrases.
It would be a good idea to obtain a copy of the application for the mark and all supporting documents that were submitted. This is what is available via a general search.
Word Mark FIRE CIDER
Goods and Services IC 005. US 006 018 044 046 051 052. G & S: Dietary supplement drink. FIRST USE: 20101204. FIRST USE IN COMMERCE: 20101204
Standard Characters Claimed
Mark Drawing Code (4) STANDARD CHARACTER MARK
Serial Number 85603738
Filing Date April 20, 2012
Current Basis 1A
Original Filing Basis 1A
Published for Opposition October 2, 2012
Date Amended to Current Register August 17, 2012
Registration Number 4260851
Registration Date December 18, 2012
Owner (REGISTRANT) Shire City Herbals, Inc. CORPORATION MASSACHUSETTS 115 Wendell Avenue Pittsfield MASSACHUSETTS 01201
Disclaimer NO CLAIM IS MADE TO THE EXCLUSIVE RIGHT TO USE “CIDER” APART FROM THE MARK AS SHOWN
Type of Mark TRADEMARK
Register PRINCIPAL
Live/Dead Indicator LIVE
_____________________________________
In order to obtain the Fire Cider trademark, this statement appeared above the signatures of the owners applying for the mark:
The undersigned, being hereby warned that willful false statements and the like so made are punishable by fine or imprisonment, or both, under 18 U.S.C. Section 1001, and that such willful false statements may jeopardize the validity of the form or any resulting registration, declares that he/she is properly authorized to execute this form on behalf of the applicant; he/she believes the applicant to be the owner of the trademark/service mark sought to be registered, or, if the form is being filed under 15 U.S.C. Section 1126(d) or (e), he/she believes applicant to be entitled to use such mark in commerce; to the best of his/her knowledge and belief no other person, firm, corporation, or association has the right to use the mark in commerce, either in the identical form thereof or in such near resemblance thereto as to be likely, when used on or in connection with the goods/services of such other person, to cause confusion, or to cause mistake, or to deceive; and that all statements made of his/her own knowledge are true; and that all statements made on information and belief are believed to be true.
A simple search via Google, Pinterest, Twitter reveals many individuals as herbalists or corporations were using the phrase Fire Cider prior to the application. Indeed the phrase was in the public domain and used to describe the very cider tonic for quite some time – perhaps over 200-300 years at a minimum.
Hope this helps to focus thought in a productive manner.
[…] Trademarking Tradition: the Fire Cider® Controversy […]
Hi y’all, glad to read the research and find the legal sources to understand this situation better. The commons is the goal, and I for one do believe that we, both businesses and individuals have an obligation to change if our actions have created something different than our original intentions, especially if we see that our actions have hurt or offended others. That includes “small” businesses that choose a name, and then fall back on the laws that have been created to support and protect capital interest and the ideology of “private or intellectual property rights”.
Herbalists like myself are asking that the name be entered into the public commons, a place that is slightly more protected from the invisible hand of the free market, and the well intended small business owner, who now due to globalization has been introduced to practices they didn’t practice, and through gentrification, and the destabilization of local economies/communities have access to now cash in on some of the popular trends sold to the millennial generation.
For example, by the time it is shipped clear cross country to the store near me in Northern California to be marketed and sold as a cocktail mixer, this product has consumed more resources than the locally made mix, (this is globalization in effect in our country= the cost and waist of resources do not matter, only available markets for consumer consumption) Shire City markets here to those with disposable incomes and a taste for spicey alcohol, not to those with health issues and a lack of medical coverage and support. This is the deeper issue for many of us herbalists that disagree with the trade marking = herbalism is the people medicine and has always been, and every herbalist i’ve meet does this work for the people and the health of our communities first, not to mass produce a product to be sold coast to coast and push out local producers,,, intentionally or not, thus is what is happening.
In the end Shire City can change, they can do what they want,,, it would cost them money, and money is the bottom line, this is a business and Shire City appears as though money is what they are after, not the health of the people. From what i’ve read on line, and seen in stores, Shire City is about selling a drink mix to those with disposable incomes, and when they get hooked, their hip websites will show you how to build a pallet garden for your newly gentrified neighborhood. Shire City has the power to change, they have the power to work with herbalists, and in the end, they now have the networks and funds to help support and strengthen the movement to legally place “fire cider” into the public commons where we believed it was, and believe it should be.
Thanks for keeping the dialog going.
eric
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[…] is some amount of controversy in the herbal world over Fire Cider and the trademarking of a traditional recipe with a name […]