Business

Popular herbal remedy at center of trademark fight

Trademark on vinegar-based concoction leaves herbalist community seething

Herbalists attending a symposium at Wheaton College in Norton on Saturday recited the Free Fire Cider cheer.
Gretchen Ertl for the Boston Globe
Herbalists attending a symposium at Wheaton College in Norton on Saturday recited the Free Fire Cider cheer.

NORTON — The International Herbal Symposium is typically a celebration of the ancient practice of using medicinal plants to heal the body, where herbalists from around the world exchange recipes as freely as hugs, meditate, and catch presentations including “How Mushrooms Can Help Save the World.”

But the harmonic gathering of 900 herbalists at Wheaton College last weekend was rattled by a dissonant intrusion from the business world: a legal battle over a popular herbal remedy — fire cider, a tangy, pungent tonic used to treat everything from winter colds to poor circulation.

Many herbalists say the recipe is about as proprietary as chicken soup. If anything, they said, it belongs to a Vermont practitioner, affectionately called the “grandmother of herbs,” who refined it three decades ago and generously shares it. But in 2012, a Pittsfield company called Shire City Herbals trademarked the name Fire Cider, sparking a series of legal exchanges in a community more committed to the power of nature than profits.

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“We are not lawyers. We are herbalists. So we are very confused. How can this happen?” Nicole Telkes, an herbalist in Austin, Texas, who has been sued by Shire City, said at the symposium during a presentation on the dispute.

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The founders of Shire City, meanwhile, say they have been unfairly vilified and took legal action only after herbalists organized a campaign against the trademark obtained by their small company, which sells bottles of Fire Cider online and in natural- foods stores around the country.

“People think that we are some giant corporate monster, and that we are this huge dangerous threat to the entire herbalist tradition, and that we must be stopped at all cost right now or there are going to be this unraveling of everybody’s rights,” said Shire City cofounder Dana St. Pierre, who did not attend the symposium in Norton.

St. Pierre and the company’s other cofounders, his wife, Amy Huebner, and her brother Brian Huebner, said they registered the Fire Cider name at the suggestion of a customer, a trademark attorney, to prevent larger companies from claiming it for themselves.

The herbalists did not know Shire City had registered the name until last year, when it complained to the e-commerce site Etsy about versions bearing the trademarked name being available on the marketplace.

Gretchen Ertl for The Boston Globe
Nicole Telkes of Austin, Texas, is one of three herbalists being sued for trademark infringement.

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Herbalists counter that Rosemary Gladstar of East Barre, Vt., concocted the mixture in the 1980s with her students and coined the term “fire cider” in her numerous books on herbal medicine published during in the 1990s.

Gladstar says her version — made with apple cider vinegar, honey, garlic, ginger, horseradish, and cayenne pepper — is “warming, circulatory, and moves energy in the body.”

A mentor to other herbalists, Gladstar created a recipe that served as the basis of countless versions cooked up over the years by practitioners around the world. She said Shire City should not own a name that belongs to the “herbal commons.”

“It’s not theirs to buy,” said Gladstar, who helped organize the Wheaton symposium. “Herbalism is based on community herbalism — being supported by your local community and providing for your local community. It’s not necessarily that people are going in it for big branding.”

Herbalists informally launched a campaign against Shire City, creating a movement they called “Traditions Not Trademark.” Last June, they challenged Shire City’s use of the name fire cider before the Patent and Trademark Office, saying the title is so generic it cannot be owned by any one company or person.

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In April, Shire City sued three herbalists — Telkes, Kathi Langelier of Lincolnville, Maine, and Mary Blue of Providence — for allegedly selling products with the company’s trademarked term, as well as unfair business interference and trade practices. Shire City said they had joined efforts to dissuade retailers from carrying Fire Cider, resulting in lost sales of at least $100,000.

Kate Klonick, a Yale Law School fellow who specializes in intellectual property cases, said the herbalists’ chief challenge will be to prove that fire cider has a common or generic usage beyond the herbal community.

“It seems to me like it is generic among a small group of people. It’s going to be up to the court to decide if that is a significant amount of people to disqualify” the trademark, Klonick said. “Just because something is open source does not mean someone can’t make money on it.”

Trademark disputes such as this are common. Last year, Vermont businessman Bo Muller-Moore successfully beat back a challenge from the Chick-fil-A fast-food chain, which said the “Eat More Kale” slogan he had printed on T-shirts and bumper stickers was too similar to its “Eat Mor Chikin” motto. In the 1960s, Kerns Kitchen in Louisville, Ky., trademarked “Derby-Pie” for its pastry of chocolate, walnuts, and pecans, and subsequently sued restaurants, Bon Appetit magazine, and some small businesses for using the phrase.

Shire City’s version of fire cider does differ from Gladstar’s original: It includes orange and lemons, as well as habanero pepper. The company's origins date to 2008, when Amy Huebner and St. Pierre both lost their jobs and moved in with her parents.

St. Pierre said he had been making home remedies for allergies and bronchitis for years, and a former roommate identified one recipe as fire cider. He bottled a version of it to sell at a crafts show, and his supply quickly sold out, prompting St. Pierre and the Huebners to create their company in 2010.

Shire City said in its lawsuit that it has sold 300,000 bottles of Fire Cider since 2010; an 8-ounce bottle retails for $12 on its website.

Amy Huebner said the attacks on her company are “unbecoming of a healing community,” adding the critics “haven’t tried to sell something in a national billion-dollar industry.”

To the herbalists, that’s exactly the problem: They see Shire City as an unwelcome agent of cold-hearted capitalism in a world dedicated to healing people with nature’s remedies.

“Why can’t we be in a business model where we can create the world we want to live in? We don’t have to be fighting each other,” Telkes said. “We can be supporting each other. But maybe that’s not capitalism.”

Karishma Mehrotra can be reached at karishma.mehrotra@globe.com. Follow her on Twitter @missmishma.