Can a herbal product tradition be trademarked?

  • Herbalist Tonya Lemos of Ashfield-based Blazing Star Herbal School, right, instructs Rebecca Hoffer of Easthampton in creating fire cider Jan. 31, 2017.

  • Fire Cider Elixir, made by Montague-based Sweet Birch Herbals, is shown Jan. 19, 2017 inside Nourish Wellness Cafe in Northampton, where it is served.

For The Recorder
Published: 2/3/2017 10:44:21 PM

ASHFIELD — Tonya Lemos chopped a root of horseradish into thin slices. She handed a piece to each of her two apprentices at the Blazing Star Herbal School she runs out of her home in Ashfield, and placed the rest in a half-gallon mason jar.

She was teaching a lesson on how to make the herbal tonic “fire cider,” a traditional and common remedy within the herbal community — one that has now sparked a trademark battle with a Pittsfield company.

“I started with horseradish because it’s the foundation of the recipe,” Lemos said. “It clears the sinuses ... it gives a tingly feeling of warmth.”

One apprentice, Ashley Berry, of Athol, took a bite of horseradish and winced. “It’s super strong,” she said.

Lemos added chopped garlic, onion, hot peppers and ginger, which are the most common ingredients in fire cider. She added turmeric, burdock, lemon, pomegranate, astragalus, elderberries, hibiscus and rosehips to the mason jar. Then she poured apple cider vinegar over the layers of herbs and topped the mixture off with honey.

The mixture would sit for four to six weeks as the vitamins and nutrients from the herbs are extracted by the apple cider vinegar. It is then used as a daily tonic — taken by the spoonful or shot glass.

Lemos said she learned how to make the tonic about 25 years ago and she passes along the recipe through the herbal school she has been running for 17 years. “It’s a remedy that I always have on hand,” Lemos said.

When Lemos feels the early symptoms of a cold, she often takes a shot of fire cider with elderberry syrup. For health, Lemos said, she takes fire cider once a week.

But in December 2012, a Pittsfield company, Shire City Herbals, trademarked the name “Fire Cider” with the U.S. Patent and Trademark Office. The move caused uproar in the herbalist community, because many makers of the tonic have since been formally asked by Shire City to change the name of their product.

The controversy sparked a three-year battle between the company and community herbalists. Mary Blue of Farmacy Herbs in Providence, R.I., Nicole Telkes of Wild Spirit Herbs in Austin, Tex., and Katheryn Langlier of Herbal Revolution in Union, Maine, formed the group “Traditions Not Trademarks” and the campaign “Free Fire Cider” to ask retailers to take the product off the shelf and encourage people to boycott the brand until “fire cider” is back in public use.

“It’s a name that shouldn’t be owned,” Blue said. “We want it generic.”

In 2015, Shire City filed a complaint in federal court in Springfield against the three herbalists, seeking $100,000 in damages. A trial date is anticipated this year.

The complaint states that Blue, Telkes and Langlier have circulated false or misleading statements through the website and directly to retailers, causing many of Shire City’s retail accounts to have the company’s product removed from their shelves, and that Shire City has lost the opportunity to enter into contracts with expected retail accounts.

While the product is sold at many markets in the Pioneer Valley, one establishment in Northampton recently decided to stop selling Shire City’s brand.

In January, River Valley Co-op announced it was discontinuing the sale of the Shire City Herbals Fire Cider, stating that the decision was not made lightly.

“We no longer wish to remain neutral on this issue, and in good conscience now choose to remove Shire City Herbals’ product from our store,” the letter states.

“We appreciate the work Shire City Herbals has done to bring popular attention to this traditional remedy. It is unusual for us to have a local supplier with such a successful and effective product in our Wellness Department, and we were excited and proud to promote them in the past.”

River Valley Co-op cited the lawsuit Shire City brought against the three herbalists and said Shire City “has sent intimidating letters to many other small herbal producers using the name ‘fire cider’ to sell their own versions of the folk remedy.”

“The fact remains that the term ‘fire cider’ was not created by Shire City Herbals and had been in use by herbalists all over the country long before they started making their product,” the letter states.

“Shire City Herbals did not invent this formula. Decades ago, the basic recipe was published with that name, in a book by Rosemary Gladstar.”

Bud Stockwell, owner of Cornucopia Foods in Thornes Marketplace, sells Shire City’s Fire Cider and Fire Tonic No. 9 — produced by one of the defendants in the case, Katheryn Langlier who originally called her product Fire Cider No. 9.

Stockwell said he has never tried the products, but they sell very well. He said people should have the right to choose the products they want and Shire City Fire Cider is a top selling product.

Shire City Herbals was founded by siblings Brian and Amy Huebner, and Amy’s husband, Dana St. Pierre.

According to the company, Dana St. Pierre learned a recipe from his grandmother which consisted of onions, garlic and honey. Shire City said he refined it later, adding apple cider vinegar as well as oranges, lemons, tumeric, ginger and habanero peppers.

They sold their first batch at the 2010 Shire City Sanctuary Shindy artisan festival in Pittsfield. The company began to grow and, in 2012, Shire City decided to trademark its product to protect the brand and the company, according to Brian Huebner.

Since its start, the company has sold over 300,000 bottles of Fire Cider though retail establishments across Massachusetts and the United States.

As the company expanded, Huebner said, they noticed similar products using the name fire cider.

Herbalists say the company reached out to sellers of similar tonics on the online platform Etsy, asking them to change the product’s name and online tag.

The Free Fire Cider campaign said there are 30 small-scale fire cider producers that have been contacted by Shire City to change the name of their product. The campaign calls those producers the “Fire Cider 30.”

“It’s incumbent on us to defend the brand name to a reasonable degree,” Huebner said, referencing trademark abandonment. If Shire City did not enforce the trademark, in theory, a large company such as Pepsi could create a product called fire cider, Huebner said.

In 2015, the company issued a complaint against Temple Turmeric, a company that supplies to grocery stores across the country such as Whole Foods.

Temple Turmeric had a similar product called “Pure Fire Cider,” but changed the name after the lawsuit to “Pure Fire Tonic.”

“Temple Turmeric was infringing on our brand with the name of their product,” Huebner said. “They could have seriously confused some of our customers, damaged our reputation and harmed our small business.”

“We’re not trying to be the bad guys,” he said. “We’re just trying to defend our brand.”

On Thursday, the campaign marked the day “World Fire Cider Day of Action” asking people to support the boycott of the Shire City brand, sign a petition to revoke the fire cider trademark and to donate to help fund trial costs.


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