Shire City Herbal's suit over 'fire cider' trademark heads to trial this week

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PITTSFIELD On one side is a small but growing Pittsfield company seeking to defend a trademark that it legally protected seven years ago. On the other are three herbalists who claim the same term is a generic name that existed long before it was trademarked and that anyone should be able to use it when selling herbal tonics.

This battle over who is legally entitled to use the term "fire cider" comes to a head this week when a lawsuit filed against the three herbalists by Shire City Herbals of Pittsfield in 2015 goes to trial in U.S. District Court in Springfield. The trial before Judge Mark G. Mastroianni begins on Monday.

Shire City Herbals, which makes vinegar-based health tonics under the fire cider brand name, filed a $100,000 lawsuit against the three herbalists, who call themselves the "Fire Cider 3," in July 2015. The complaint accuses defendants Mary Blue of Providence, R.I.; Nicole Telkes of Cedar Creek, Texas; and Kathryn Langelier of Lincolnville, Maine, of trademark infringement, disparagement, unfair trade practices, and other related claims, including the usurpation of the fire cider domain name. The three women all run herbal-based businesses, according to court documents.

Shire City Herbals, which began operating in 2011, legally trademarked the term "fire cider" with the U.S. Patent and Trademark Office in 2012. But the herbal community claims that herbalists have used the term for some 40 years, and that fire cider is the intellectual property of Rosemary Gladstar of Milton, Vt., who is known as "the godmother of modern herbalism."

Blue declined to comment when contacted by The Eagle. Telkes and Langelier could not be reached for comment.

In a telephone interview, Gladstar, 70, said she first used the term in 1981 in a home study course she wrote while she was an instructor at the California School of Herbal Studies. The term was later copyrighted in a book she wrote in the 1990s that was published by Story Communications of North Adams, Gladstar said.

On their website, freefirecider.com, the herbalists state the root of the whole issue is "the trademarking of a generic name so it is no longer available in commerce."

"People were using it as a business term before Shire City," Gladstar said. "It's like trying to trademark elderberry syrup. You can put a name on it, but it's not a trademark because it's a generic term; or it's like apple pie or sriracha hot sauce. You can sell it, but nobody can trademark the names."

The herbal community has waged a grassroots campaign against Shire City's use of the term fire cider, which included a six-month boycott of Shire City's products that Gladstar started in 2014, and a petition against the use of the name that has garnered over 10,000 signatures, according to freefirecider.com. The group even filed a notice to cancel the trademark with the U.S. Trade and Patent Office in 2014, one of the incidents that sparked the lawsuit.

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In court documents, Shire City Herbals claim the defendants have used the fire cider name to sell their own products through retail channels and online sites like Etsy, so that consumers aren't sure what company makes them. In January 2014, Shire City Herbals began sending cease-and-desist letters to people who were using the term fire cider to sell their products.

In an interview with The Eagle in 2015, Shire City Herbals' co-owner Amy Huebner referred to the filing of the lawsuit as "a last resort," adding that the firm had been trying to negotiate and work with the defendants for over a year and a half before the complaint was filed. Attempts to resolve the issue since then through mediation have also failed, even though some of the charges Shire City brought in the original complaint have been dismissed. On the advice of legal counsel, Huebner declined to speak with The Eagle for this article.

"There's been a campaign to create an impression that this is about cold, hard capitalists trying to quash the competition," said attorney Christopher Hennessey, who represents Shire City Herbals. "We're trying to dispel that impression."

Hennessey said Shire City Herbals' origins belie the notion that the company is trying to trample the little guy.

With help from a tax incentive package from the city of Pittsfield, Shire City Herbals moved into a $1.2 million production facility last year. But Dana St. Pierre, Huebner's husband and one of the company's three owners, based Shire City's original tonic recipe on homemade concoctions that were made by his grandmother, who came from Germany. St. Pierre and Huebner, who met in high school, and her brother, Brian, the company's third owner, began making their homemade tonics eight years ago in a church kitchen in Pittsfield, that was convenient because it was located near St. Pierre and Huebner's then apartment.

Shire City Herbals markets and sells its products nationally, but until last year the company made fire cider in a shared commercial kitchen at the Franklin County Development Corp. in Greenfield, then shipped their products from a warehouse in Pittsfield. Pittsfield to Greenfield and back is a three-hour round trip.

"This is a story about passionate local folks who started out without enough money for a used car to get around in that created this great brand," Hennessey said. "Shire City Herbals went through the appropriate channels with the U.S. Trademark Office. We hope that this is evidence that the mark is valid."

Gladstar, who has been a practicing herbalist for 40 years, said she believes in "the trademark laws absolutely." But she said if the herbal community "lets this slide," then all of the traditional formulas it uses will be subject to interpretation. "It's just not fair," she said.

"We don't mind anyone using it," Gladstar said. "Shire City can use it, too. But to claim ownership? Uh-uh."

Business Editor Tony Dobrowolski can be reached at tdobrowolski@berkshireeagle.com or 413-496-6224.


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