‘Fire Cider Three’ Receive Award for Trademark Infringement Lawsuit Victory to Keep ‘Fire Cider’ Generic

The nonprofit American Botanical Council (ABC) has announced the recipients of its annual Mark Blumenthal Herbal Community Builder Award. Mary Blue, Katheryn Langelier, and Nicole Telkes are three herbalists who became the face of the “Tradition Not Trademark” movement when they were sued for trademark infringement and battled in court to keep the herbal legacy product “fire cider” a generic term.

Origins of ‘Fire Cider’

Herbalist and author Rosemary Gladstar originated the modern iteration of fire cider as a part of her herbal education course in the winter of 1980: an apple cider vinegar-based tonic that contains various fiery herbs, including cayenne pepper, garlic, and horseradish.

She received the first ABC Blumenthal Herbal Community Builder Award for her many efforts and activities in the North American herbal community, and praised the efforts of the Fire Cider defendants to keep the name available to all.

Photo: Herbalachia.com

We realized early on that we were committed and willing to fight for this,” Gladstar wrote. “We felt it was important to take a stand for these traditional herbal products that were part of a shared legacy….They [the three herbalists] were fully committed to what they believed in, and so fully committed to the herbal community that they would risk everything to stand up for their herbal traditions.

Campaign against trademark infringement lawsuit

In 2012, the Pittsfield, Massachusetts-based Shire City Herbals filed for a trademark for the name “Fire Cider” for its own version of the blend. The three herbalists initiated an online campaign to bring the trademark to the attention of herbalists and consumers, and exhorted them to make their own “fire cider” on the basis that the term was traditional and generic, and thus not trademarkable.

In 2014, Shire City sued Blue, Langelier, and Telkes for trademark infringement and trade disparagement following their efforts to cancel the “Fire Cider” trademark and boycott the company. The company initially sued them for $100,000; however, these charges were dismissed before the trial began. At that point, the defendants had a decision to make: Whether or not to pursue their attempt to cancel the trademark or discontinue their efforts and leave it in Shire City’s control.

There was this moment when we all paused to wonder what we should do next,” wrote Gladstar. “It made perfect sense for them to quit while they could: They had a lot at stake to lose and nothing to win except a name they wanted to give back to the herbal community. I can’t recall who spoke first but one of them said, ‘Heck no, I’m not going to quit now. I’m in this to the end.’ And then the other two chimed in, and just like that, they were ready to press forward.”

During the nine trial days in 2019, many members of the herbal community rallied around the Fire Cider Three at the US District Courthouse in Springfield, Massachusetts. Supporters attended the trial and provided food for the defendants; families held picnics on the courthouse lawn; and many herbalists brought samples of their own fire cider to share. Blue, Langelier, and Telkes risked their livelihoods on the outcome of the lawsuit, and the community rallied around them in response. In September 2019, United States District Judge Mark. G. Mastroianni ruled in favor of the defendants and canceled the trademark on fire cider.

Rosemary Gladstar (third from left) with Nicole Telkes, Mary Blue, and Katheryn Langelier.
Photo: Rosemary Gladstar’s Herbs & Earth Awareness on Facebook

Blumenthal was an expert witness for the defense, providing extensive market data on herbal dietary supplement sales that were used to invalidate the testimony of Shire City’s expert witness, who claimed that the name “Fire Cider” was not generic.

The ‘Fire Cider Three’ took an important stand for traditional herbalism and its nomenclature, and pushed back against inappropriate expropriation by a commercial entity,” said Blumenthal. “I believe that it was in the best interest of the herbal and medicinal plant community for ABC to use its resources to support the defendants and their laudable position, and now, to honor them publicly with this Community Builder award.”

Photo: Mary Blue

Telkes thanked ABC for the recognition of a positive outcome after a tough five years, saying: “I am extremely grateful and honored to have been chosen as a recipient of the Community Builder Award from the American Botanical Council.”

Blue commented: “The American Botanical Council was an integral force in our victory and continues to honor and support our work to defend herbal traditions with this award. We are deeply humbled and honored to be recognized by ABC this way. Thank you for this continued support and acknowledgment.”

Langelier added: “It’s a great honor to receive this award and recognition from ABC. I have so much gratitude for the overwhelming support we received from the herbal community, Rosemary Gladstar, and our lawyers. Nikki, Mary, and I were a force that stood up for what we believed in: Protecting other herbalists from being sued and for fire cider to be recognized as a generic term.”

An article on the Fire Cider lawsuit is available in issue #125 of ABC’s peer-reviewed quarterly journal HerbalGram.

The annual award, named for ABC Founder and Executive Director Mark Blumenthal, is given to individuals who have played a significant role in creating a sense of community among herbalists, botanical researchers, members of the herb and natural products communities and industries, and others who work in the area of medicinal and aromatic plants.

The process of choosing and granting the ABC Botanical Excellence Awards is generously underwritten by the following sponsors of the ABC Celebration: Amin Talati Wasserman, LLP; ChromaDex; Horphag; Indena; MegaFood; Natural Factors Nutritional Products, Inc.; New Chapter, Inc.; New Hope/Informa; NOW Health Group, Inc.; PlusPharma Incorporated; RFI Ingredients, LLC; RT Specialty, LLC; Terry Naturally/EuroPharma; and the United Natural Products Alliance.

 

Header photo courtesy Mary Blue

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