Fire Cider Goes To Court
The Federal Courthouse in Springfield, MA is a large modern building with an entire edifice of glass facing the street. With its ‘cascading concave roof gracefully framing the space in a delicate shell of steel and glass’, the courthouse is an imposing sight indeed. But even more impressive than this wall of steel and glass, are the two ancient trees that the courthouse was obviously built around. The glass walls literally curve around the largest Tillia Europa, or Linden tree, I’ve ever seen and a huge old copper beech that looks like its been standing there for centuries. Its obvious the architects took these trees into account when planning and building this courthouse. I later learned that their “presence was too powerful to ignore”…and the preservation of these trees “was a key element in the design proposal that emerged” for the courthouse. Those two ancient guardian trees and the wild garden beneath them replete with healthy stands of Black Cohosh and maidenhair fern, helped make our days in Federal Court bearable. Their beauty and strength rooted us deeply—and gave us hope and courage.
So did the community members who came to support us during the 7 days of trial. And the herbalists who brought us lunches that were spread picnic style in the courthouse pavilion so that we’d have healthy food during the intensity of the trial. So did our witnesses who traveled across the country to share their truth and tell their story all on their own dime and time. And then there were our amazing lawyers who worked primarily pro bono for the past 4 years, and poured not only their expertise but also their hearts into this case. But most of all, those trees were a bastion of strength for three young women who were on trial, like the witch hunts of old, for having the audacity to stand up for their herbal traditions. Nicole Telkes, Kathi Langelier, and Mary Blue—they came to be known as the Fire Cider Three. Ballads will be written about them. In fact, there are a few already being sung (and some are included in the new Fire Cider book!).
Four years of preparing for this trial and 7 exhausting days in Federal Court…all for a simple apple cider vinegar recipe aptly named fire cider. It’s a great recipe, its true, easy to make, tasty, versatile, an excellent cold and cough remedy as well as a tasty condiment. But, really, who would have thought a simple ACV recipe made from common kitchen ingredients would become as popular as it has—or as wildly controversial. It certainly never crossed my mind that day a little over 4 decades ago when I made that first auspicious batch of fire cider as part of a winter health class. Like most herbal recipes, it wasn’t fully original, but was based on several other old herbal recipes. I added my own touches, a few new herbs, a little something hot, a little honey for sweetness. When my students and I strained and tasted that first batch of herbal infused vinegar several weeks later a perfect merging of sweet, hot, spicy, sour and pungent flavors exploded in our mouths. We knew we had created a winner and promptly named it Fire Cider.
And that’s how fire cider began…in the herb school kitchen of the California School of Herbal Studies somewhere between 1979 and 1980. It became one of many favorite recipes that I shared openly and freely with students and other herbalists. It spread out into the world rather slowly at first, but as I traveled and taught through the ensuing years, and taught others how to make it, and they taught others, it developed a life of its own.
And that’s how the story should have continued, but, unfortunately, it didn’t. A little over five years ago a young upstart company saw a great opportunity and trademarked Fire Cider. In our naiveté, we thought trademark laws were in place to provide protection for people who had created their own original products and/or names from others who were trying to copy them. We didn’t realize that, in fact, a trademark could sometimes be obtained by whoever grabbed the name and claimed ownership first. It was a wake up call.
So just how did fire cider and several members of the herbal community end up in that courthouse in Springfield? As beautiful as those trees were and worthy of a visit, being in Springfield isn’t something any of us would have planned on. But oddly enough, that company that decided they had the sole right and ownership of fire cider (regardless that the recipe and name had been around for decades), next decided to take legal action against the Fire Cider Three and filed a $100,000 lawsuit against them. Their claim; that these three herbalists were damaging their business and had violated trademark laws. Nicole, Mary and Kathi, each well-known community herbalists and farmers, avid activists, and supporters of traditional herbalism, had decided that something needed to be done. That it wasn’t ok that companies could come along and buy up the rights to popular herbal remedies that were already in existence and were considered ‘community owned.’ As spokeswomen for the movement that was forming around fire cider, they founded two organizations, Traditions not Trademarks and Free Fire Cider, both online resources dedicated to educating people about the issues surrounding the trademarking of traditional herbal products. The goal was to educate people as to why it’s important to keep these herbal treasures as legacy herbal products, available for everyone to make, use and sell as they like. While the greater concern was all traditional herbal products, the poster child was fire cider.
My role? As the creator of the original recipe and name, I was invested in getting this popular remedy back in circulation for the entire herbal community and I worked closely with Nicole, Mary and Kathi on the behalf of fire cider. When the lawsuit was filed, I wasn’t included simply because I hadn’t sold fire cider since the sale of my herb shop in the 1980’s. But I was deeply invested and involved and would take a stand for fire cider along with those three women no matter what happened.
It was never any of our intentions to go to court over this. We had been hoping for a resolution through mediation in which the company who had trademarked fire cider would continue to sell fire cider under their name, but still allow other smaller companies to sell it as well. Much like Sriracha hot sauce or elderberry syrup, where everyone would be a winner and enjoy a piece of the good old apple pie (another generic name sold and appreciated—not appropriated—by many companies and individuals). But that didn’t happen. When the company filed a $100,000 lawsuit against Mary, Nicole and Kathi we were all shocked—and quite honestly, frightened of the huge sum of money they were demanding. Thankfully, that huge sum was dismissed early on during the first trial. But the second trial over the trademark was still pending. And that’s what brought us to State Street in the spring of 2019 where we discovered those huge guardian trees.
Court itself was interesting and intense. None of us had ever experienced anything quite like it, nor do we have plans to experience it again. We were all examined and cross-examined, sworn in, gave our testimonies, told our truth and shared our stories. We were an awesome force, really. Witnesses that got up to testify on behalf of fire cider spoke clearly and passionately, from the heart, of their work as herbalists and their history making and selling fire cider. Several had sales receipts dating to the early 80’s confirming they had been selling it long before the trademark had gone into effect. Our expert key witness’s, Dr. Butters, a linguist, and Mark Blumenthal of the American Botanical Council (ABC) and editor of the prestigious magazine, Herbal Gram, presented convincing arguments for the case of fire cider being a generic name, one that was free to be used by all. Our lawyers, Seth Coburn and Jim Goggin of Dana Verrill Law Firm, Maine, were simply amazing people. They really cared about the case and what it stood for. They understood what was at stake and were willing to devote endless hours at no pay to help preserve our traditional herbal recipes.
There were also those special moments between court sessions when we were together with members of the community who came to support us—and Traditions not Trademarks—during the trial. They brought food, cheered us on, and helped disperse the anxiety that goes with being in court. And when we stood beneath those ancient guardian trees, grounding and receiving energy; they reminded us why we were even fighting this strange battle we found ourselves in and helped us draw strength from deep within the earth.
The story is still unfolding. Unlike the movies where the judge steps out after a few tense moments and publicly announces the final verdict, Federal Court it seems has a long meandering process. First there are the court proceedings, which can take place over several months, followed a few weeks later by a debriefing between lawyers and the judge. Several weeks after that, the lawyers present their closing arguments to the judge, and then the judge has several weeks to think about it all and make his decision.
We’re all on the edge of our seats waiting (we’ll announce the verdict as soon as we hear back from the judge). If the case was to be determined simply on truth, the truth of who first made fire cider, the truth of who was selling it first, the truth of where it originated, and the truth that its been a popular herbal remedy for over 4 decades and is regarded as a traditional herbal legacy recipe, then the herbal community would certainly win. But trademark laws are a slippery slope, and even the most savvy trademark lawyer is never sure how a case will turn out. But no matter what the outcome, we’ve won simply by standing up for what we believed in, speaking our truth, and standing strong for our herbal traditions. After all, they are some of the oldest traditions on the planet, and belong to all of us.
Please protect your traditions. Many of the recipes, formulas and names of herbal formulas that have been shared and passed down through generations are part of a shared herbal inheritance and legacy. While trademark laws are necessary to protect individuals and companies for their investments and products, herbal recipes and formulas that are traditional and commonly used and shared should not be trademarked. It would be like strangers trademarking your favorite family recipe and calling it their own. It happens, but it shouldn’t. (This is an abbreviated version of the article, Fire Cider Goes to Court. To read the full story please go to www.scienceandartofherbalism.com)
Announcing the publication of Fire Cider, 101 Zesty Recipes by Rosemary Gladstar & Friends
(Storey Publications, 2019)
Like most of this battle, this book—Fire Cider, a 101 Zesty Recipes—has been a community effort and is our attempt to keep the story of Fire Cider alive and well. Even more importantly, it was written to help ensure that traditional herbal formulas, those recipes and remedies that have a long history of being used are kept ‘free for all’ to make, use and sell as they choose. It’s a lively collection of recipes contributed by more than 70 herbal enthusiasts, with energizing versions ranging from Black Currant Fire Cider to Triple Goddess Vinegar, Fire Cider Dark Moonshine, and Bloody Mary’s Fire Cider. Colorful asides, including tribute songs and amusing anecdotes, capture the herbal communities passionate desire to pass along the fire cider tradition. Part of the proceeds from of sale of this book will go towards Traditions Not Trademarks in an oncoming attempt to protect our traditional herbal remedies from trademarking.