Pittsfield retailer sues herbalists for campaign against Fire Cider trademark

Posted Friday, July 3, 2015 4:00 pm

PITTSFIELD — A city retailer has filed a $100,000 lawsuit against herbalists who campaigned against the company's move to trademark a product name they say is a generic term — Fire Cider — and encouraged consumers to buy similar products elsewhere.

Shire City Herbals of Pittsfield has sold more than 300,000 bottles of the potent health tonic — made by letting oranges, lemons, honey, turmeric, garlic, ginger and habanero peppers sit in apple cider vinegar — since 2010.

Filed in U.S. District Court in Springfield, the suit accuses Nicole Telkes, of Cedar Creek, Texas, Katheryn Langelier, of Lincolnville, Maine, and Mary Blue, of Providence, R.I., of trademark infringement, disparagement, unfair trade practices and trade libel, among other things.

The three defendants, all herbalists, operate businesses in their states and claimed to be baffled by the lawsuit.

"Our mouths dropped open because none of us have that kind of money," Telkes said. "We're just small-trade herbalists trying to stand up for what's right."

Amy Huebner, one of three who co-founded Shire City, told The Eagle the three herbalists and others have attempted to gin up support for a boycott of the company's product among small businesses.

"[The lawsuit] is a last resort," Huebner said. "We've been trying to negotiate and work with these folks for a year-and-a-half."

In 2012, the U.S. Patent and Trademark Office granted Shire City rights to the name Fire Cider. Two years later, the company exerted its trademark for the first time by forcing more than a dozen small-time Etsy.com sellers to remove listings of items called "fire cider."

Why were these sellers using that name?

According to the herbalist community, its a "generic term" for a "traditional herbal remedy freely shared, made, produced and sold by hundreds of herbalists across the world," reads the website freefirecider.com.

Furthermore, they say the product was "neither created nor named" by Shire City, so the company shouldn't own rights to it.

"Could a chef petition to trademark a popular food product like 'chicken noodle soup' or 'BBQ chicken pizza,' or an architect trademark the 'hip roof' then try to halt commercial sales of long-standing products?" Telkes said.

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Herbalist Rosemary Gladstar originally recorded a version of the recipe, which closely resembles Shire City's concoction in decades-old books under the name "fire cider."

Gladstar too has publicly stated her opposition to Shire City's trademark, calling the tonic "clearly a 'people's medicine' " that "isn't to be 'owned' " and endorsing the boycott of Shire City's product.

Did Shire City lift the recipe and name, then attempt to strangle competition by being first to the USPTO?

Not so, they have claimed in company newsletters.

Brian Huebner, brother of Amy and another of the three Shire City co-founders along with Dana St. Pierre, claimed "it was not until January of 2014 that I learned of Rosemary Gladstar."

"If we 'knew' this was Rosemary's favorite recipe, why on earth would we have 'stolen' it?" Brian Huebner wrote in one newsletter. "Why would we have started our business by deliberately trespassing against a respected teacher, thus guaranteeing conflict? This contradicts the character of our business and our history in the community."

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Shire City says the tonic was "an obscure recipe from Dana's grandmother" which they tweaked and named — fatefully, as it happened.

"The general formula of vinegar plus honey plus herbs is as old as the hills and we'd never claim otherwise," Brian Huebner said. "Every single bottle we've ever sold says that this is our version of an old-fashioned remedy. People can continue to sell whatever they were selling as fire cider, with the same exact formula, just with a different name on the label."

In 2014, an online petition against the trademark was signed by more than 4,000 people.

Then, Mary Blue — one of the women the company is suing — filed a cancellation proceeding with the USPTO asking that the trademark be revoked and providing evidence in support of the position.

Shire City was supposed to follow up with their own evidence, but filed the lawsuit two days before it came due, effectively stalling the proceedings, according to Telkes.

An Indiegogo page begun to help fund three herbalists' defense raised $13,198.

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"From what I understand it's pretty clear the trademark should not have been granted," Telkes said. "So we're moving to have the [USPTO] decide on the trademark and that the lawsuit be dropped."

Telkes added, "We have nothing against the company. We just think they're being given terrible legal advice, and their business practices are going to backfire on them."

Telkes said she sold "about a hundred bucks worth" of fire cider last year.

"It was a tiny part of my business, but now people are starting to ask me to make more of it," she said. "We don't recognize the trademark; we think it's illegal."

According to Telkes, roughly 10,000 people are part of the movement to "free fire cider."

The tactics being used by the company's detractors are what the lawsuit seeks to address — tactics Amy Huebner said involved "false, misleading, inflammatory and libelous claims" in a "nasty campaign being spread on social media."

"We have encouraged the people who are upset about the trademark to take it up with the appropriate government agency, as that's who has the power to decide what is generic," Amy Huebner said.

Berkshire Organics messaged the Free Fire Cider webpage explaining why they agreed with Shire City about the tactics, which in their case involved harassing, "venomous" phone calls, though they did say they "understood the concern" about the trademark.

"Free Fire Cider tried to bully us into boycotting a locally made product," the message read. "And Free Fire Cider did not handle the situation correctly but instead decided to implore hostile gang-like tactics to force changes that should have been dealt with through civil and democratic means. Now, there are individuals being sued and instead of using resources to 'free fire cider,' they are needed to free the three from a lawsuit that never needed to be filed."

In any event, Brian Huebner stated in a company newsletter that the boycott was not a success.

"Instead of withering under the boycott, we have nearly doubled the number of customers and stores that stock Fire Cider over the past year," he said. "We grew in spite of the boycott."

Contact Phil Demers at 413-496-6214.