[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.]
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 email@example.com:
i read this blog post today:
and 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.
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:
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.
-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.
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.
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:
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.
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, this one from Sean Donahue, 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.