‘Tradition, not trademarks’: Local activists help herbal community prevail in nationwide trademark case

Written by on November 16, 2019
Monica Rude pours warm apple cider — with added fire cider vinegar from her company, Desert Woman Botanicals — into a thermos in preparation for Fire Cider Day at Bear Creek Herbs on Friday.

Monica Rude pours warm apple cider — with added fire cider vinegar from her company, Desert Woman Botanicals — into a thermos in preparation for Fire Cider Day at Bear Creek Herbs on Friday.

“They didn’t know what a hornet’s nest they were kicking,” said Monica Rude, an herbalist who runs Desert Woman Botanicals in Gila. Through her company, she makes a variety of herbal products, including her version of “fire cider,” a catchall name for spicy, apple cider vinegar-based health tonics.

Rude was the guest of honor at Fire Cider Day, held Friday at Bear Creek Herbs in downtown Silver City, an event attended by scores of people, all celebrating a victory in a trademark case that pitted what Rude described as a “corporate-minded” company against a more tradition-oriented herbal community.

“Fire cider is basically an apple cider vinegar tonic with herbs” — cayenne, horseradish and other things — “and honey in it,” Rude explained. “It’s something that’s been in the herbal community for a long time. In medieval times, it was used to promote health and guard from the plague — it’s a commonly used home remedy. The cool thing about fire cider is you can make it however you want to.”

Regardless of the recipe, the right for her and others to call their products fire cider was at the center of a yearslong trademark battle that culminated in a trial this past September. Rude testified on behalf of the “Fire Cider Three” — and the greater herbal community, the proverbial “hornet’s nest” — to the fact that she has been selling products using the name “fire cider” since 1999.  

“I brought receipts to prove it,” she said. 

That date is important, since the trademark case was launched by a Massachusetts startup that, in 2012, trademarked the name Fire Cider, and — in 2014 — began sending out cease-and-desist letters to smaller herbal companies around the country that were using the name “fire cider” for their own products. The company, Shire City, was obligated — like any trademark owner — to enforce their claim to the brand, or lose the exclusive right to it. 

Shire City’s legal threats, however, “caused a big hullabaloo in the community,” Rude said, “because it’s like someone calling you and saying, ‘You can’t use apple pie.’” 

Rude is a sharp, witty woman who exudes independent spirit, something she has in common with her fellow herbalists around the country and a spirit that was on display during the weeklong trial in September. 

“We rented a house in Springfield, [Mass.,] and stayed together — it was a very welcoming group of herbalists, and there was a lot of mutual support, very family feeling. We had picnics in the atrium — which didn’t have any plants in it, by the way — of the courthouse. The courthouse staff said they’d never seen anything like it.”

One of the chief participants in that family gathering was Rosemary Gladstar, who testified in court about how she had begun making what she and her then-students called “fire cider” in an herbal class she taught 40 years ago. In early 2014, Gladstar, a progenitor of the modern North American herbalist movement that began in the late 1960s, called for a boycott of Shire City’s products. Three women — who quickly became known as the Fire Cider Three — began the Free Fire Cider website and the Tradition not Trademarks Facebook page to promote the boycott, and to call for the Fire Cider trademark to be revoked. 

The Free Fire Cider boycott gained momentum and started to affect Shire City’s sales, so the company sued, seeking damages for lost business revenue from the three women, Nicole Telkes, Kathi Langelier and Mary Blue. The suit, which sought $100,000 in damages, was thrown out almost immediately, but the trademark dispute dragged on for years. 

About 30 companies across the United States received cease-and-desist notices, which are now rendered moot by the judge’s ruling that fire cider is a “generic” term, and can’t be trademarked after all. 

“The other side called witnesses to say they did surveys that showed the term ‘fire cider’ is not commonly known,” Rude said. 

The ruling sets a precedent because the judge decided that, even if the term “fire cider” wasn’t necessarily well known outside the herbal community, it was a term in longstanding use within that particular community — and that’s enough to make it a generic term.

According to the United States Patent and Trademark Office database, Shire City claimed in their 2012 trademark filing that the term “fire cider’s” “first use in commerce” was in December 2010, the year Rude says the owner of Shire City, Dana St. Pierre, also claimed in court to have invented it. 

Actually, Rude added, “I am pretty sure that my fire cider is the first he had ever tasted, in Tempe.” 

Interestingly, Rude’s company was not sued by Shire City for trademark infringement. Nor was Gladstar — who used to sell fire cider vinegar in the 1980s, and was a party to the suit. 

Rude added that Gladstar had shared “thousands” of fire cider recipes through classes and workshops that she taught over the decades. 

Any damages that Shire City may be responsible for are yet to be worked out, and the company could still appeal the case, although Rude noted that “the judge wrote a 40-page decision that should discourage an appeal.” The Fire Cider Three say on their website that they “are tying up loose ends with the U.S. Patent and Trademark Office to finish cancellation on the mark.”

“That’s the main takeaway here: We’re a community that is always finding a balance between tradition and inspiring innovation,” said Naava Koenigsberg, owner of Bear Creek Herbs. “This incident speaks to how we want to live as a community [of herbalists].”

Gladstar’s latest book, “Fire Cider!: 101 Zesty Recipes for Health-Boosting Remedies Made With Apple Cider Vinegar,” was on display and for sale Friday. The book contains a cocktail recipe from Rude, the Serious Attitude Adjuster Tonic, which is equal parts fire cider vinegar and vodka, with a twist of lime. 

“Two of those,” she said, “and you’ll feel like a different man.” 

While there was no vodka-infused fire cider at the party with which to test this hypothesis, Rude did mix up a batch of apple cider (nonalcoholic, sweet apple cider, not apple cider vinegar) that had a special kick to it, thanks to the addition of a few ounces of her new Campfire Cider tonic. That concoction uses roasted cayenne peppers, lending it a mellow, smoky flavor. 

“Fire cider is a general tonic, an immuno-tonic,” Rude said. “It’s high in potassium, which is energizing. Some take it straight, others dilute with water or add it to tea or juice.”

A steady stream of celebrants came through the door at Bear Creek on Friday, including members of the local herbalist community, like author Steve Buhner, who describes himself as a “medical herbalist and expert on plant ecology and plant ecosystems,” who has written dozens of books and articles on plants, herbalism and related subjects, including “The Lost Language of Plants” and “Sacred Plant Medicine.”

After giving Rude a hug and congratulating her on the court victory, Buhner smiled and said, “People underestimate Rosemary,” due to her soft-spokenness and the fact that, well, she’s an herbalist born out of the hippie movement. He added that, in the late ’60s and early ’70s, Gladstar served as an integral “bridge between the new-school herbalists and the old-school herbalists,” like John Christopher and Edgar Cayce.

Also present was Joy Mathews, a connoisseur of fire cider vinegar and an apple cider maker from the East Coast, who moved to the Silver City area about a year ago because it was time for “new adventures.” 

“I make it for general health,” she said. “It’s the best thing for preventing colds, and it just tastes good.”

Elizabeth Foster is a retired massage therapist who currently operates a tiny farm. 

“When I first heard about the trademark on fire cider, I thought they were kidding,” she said. “That’s like trying to trademark drinking water.”

She also said that she and some friends were planning to get together and make a batch of fire cider in the near future, and that using local, homegrown ingredients was preferable.

Alegra Link is Koenigsberg’s 22-year-old daughter, and grew up playing in the Bear Creek Herbs shop on Bullard Street. 

“I used to sneak fire cider from the sample jar that was up here,” she said, pointing to a spot on a shelf where a 6-year-old might be able to reach. “I grew up taking it. I still take it whenever I start feeling sick — and I just like the taste and the spiciness.”

Husband and wife Joe and Millie Soto stopped by the celebration as well, and Millie asked how often she could take the fire cider, which is typically dispensed out of a dropper in small amounts, i.e., by the drop. 

“I really like it,” she said. “I’ve been taking it for three days now.”

Rude read a story from Gladstar’s recipe book about a man who slammed a whole pint of fire cider and lived to tell the tale — but unless Millie wanted a mental and physical trial by fire, according to the story, it wasn’t recommended that she guzzle the stuff. 

For the record, the man who drank the entire pint of fire cider claimed that after some immediate — but short-term — awful experiences, the pint of fire cider actually gave him mystical revelations and an unprecedented feeling of vitality. 

Vitality or not, Millie’s husband, Joe, said “nah” to the fire cider, adding that he’d stick with “barley, hops and water. I drink Bud Light,” he said, smiling. “But she’ll probably get me into it eventually.”

Sterling Wecks is an 11th-grade student at Aldo Leopold Charter School who is doing an internship at Bear Creek Herbs. She was familiar with the tonic already, and said she and a friend took shots of the stuff before they competed in a National Conservation Foundation Envirothon high school competition. 

“And we did really well, better than we had for years,” she said, joking that she would “love to attribute that to the fire cider, but …”  

Rude and Koenigsberg were most thrilled by the sense of community that came out of the legal battle over the trademark, but said the most important effect from the court decision was how it would keep herbal recipes in the hands of the people. 

“The guy [St. Pierre] isn’t an herbalist, and he was totally surprised by this pushback,” Rude said. “He could have dropped the trademark and continued to make his fire cider and sell it, and we could have done the same. It would have saved millions, but he wanted to own the trademark. It’s a great victory for the herbal community, because not only are we free from the trademark, but this sets a precedent so that other herbal remedies can’t be trademarked either.

“The idea for us is to help people, not to make a pile of money,” Rude said. 

Geoffrey Plant may be reached at geoff@scdaily press.com.

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