Last month, BevNET examined the on-going battle between Shire City Herbals and organizers of a campaign called “Free Fire Cider.” The conflict stems from calls to revoke Shire City’s trademark of “Fire Cider” as it relates to beverages, as campaign supporters contend that the phrase has been commonly used for decades to describe a type of apple vinegar-based tonic. Those pushing for a cancellation of the trademark have also urged retailers not to carry Shire City’s Fire Cider and consumers to boycott the product. Shire City has since filed a civil lawsuit against three organizers of “Free Fire Cider,” claiming unauthorized use of its trademark, along with unfair business interference and trade practices.
Following the publication of our article, Amy Huebner, a co-founder of Shire City Herbals, contacted BevNET to discuss the trademark, the history of the quarrel, and her company’s approach to resolving the dispute. The following interview was conducted via e-mail and presented in question and answer format.
BevNET Managing Editor Ray Latif: How did your company decide on the name Fire Cider for your brand? Were you or your partners aware of use of the term to describe a type of vinegar-based tonic?
Amy Huebner, co-founder, Shire City Herbals: The original suggestion of a tonic made with apple cider vinegar, honey and horseradish was passed on to [Shire City Herbals co-founder] Dana [St. Pierre] by his German grandmother as a way to treat his seasonal allergies. That was in the 1990’s. There was no formal recipe or naming associated with her tonic. Several years after Dana began making his own tonic, a roommate of his suggested the name Fire Cider for it. Being a spicy tonic with an apple cider vinegar base, the name stuck. When we began our commercial business, we continued to call our recipe Fire Cider. We were not aware of any other similar products using the name Fire Cider although we had heard of a similar product called Cyclone Cider.
RL: When and why did you decide to trademark Fire Cider?
AH: When we received our wholesale license we began marketing our Fire Cider tonic in earnest in coops, health food stores, cafes, numerous festivals and farmer’s markets and made other public appearances. We gave out tens of thousands of samples and introduced our product to the general public. We were encouraged by several friends who also own businesses to protect our intellectual property as a best business practice.
In March of 2012, we started the application to trademark “Fire Cider”. We hired Scott Schuster from Albany who came highly recommended. His month of research into the commercial use of the term FIRE CIDER found no conflicts. After an 8 month investigation, the USPTO agreed that we were entitled to the exclusive rights that go with a federal trademark registration for FIRE CIDER in connection with tonics.
In January of 2014, we noticed that there were a few new listings on Etsy.com of people selling tonics in connection with the mark FIRE CIDER. As standard protocol, we enforced our rights through Etsy’s trademark complaint process.
RL: How did you attempt to resolve unauthorized use of your trademark?
The initial listings were taken down by Etsy, with only a brief description of the problem. This led to a lot of confusion and anger, even though the individuals were able to immediately relist their products. We have adopted a more direct approach, which is to contact the individual or company directly, letting them know the specifics of the issue and suggesting resolutions. In many cases, it’s as simple as changing the wording of the product title. The vast majority of conflicts have been resolved this way. Many people didn’t know what a trademark was, or that there was an issue. Often, people thanked me for explaining the problem and reaching out directly. We have also offered to cover the cost of new labels so that these small producers would not bear the cost of making the change.
RL: The Free Fire Cider campaign has sought to revoke the Fire Cider trademark and called on retailers and consumers to boycott your brand. Aside from your recent lawsuit, how has your company responded to the campaign and its organizers?
AH: At no small expense, we presented the questions from the community, as well as our own questions, to a qualified [intellectual property] attorney. We attempted to communicate what we learned to the community. Many people did not like the answers that came back, and a variety of individuals began an active campaign to destroy our business relationships.
Fortunately, we have developed very close ties with most of our retailers, many of whom have been working with us directly for years. We have spent countless hours listening to concerns. When presented with the facts, the majority of our partners continue to support us and sell Shire City’s Fire Cider tonic to their customers. We sent out a press release in January 2015 and have compiled several documents that demonstrate the misleading and deceptive information being shared about us.
We have made good faith attempts to work with the Free Fire Cider/Tradition Not Trademark (TnT) but they have been fruitless. TnT’s punitive campaign against us continues to interfere with our business relationships. Our livelihood and those of our small business partners continue to suffer very real damages.
RL: You’ve been adamant in saying that the boycott and overall nature of the TnT campaign has unfairly portrayed your company (and you personally). Moreover, you’ve said that organizers of the campaign taken company statements out of context as a way to support their cause. Can you elaborate?
AH: A handy example of what I mean is the quote attributed to [me] in their press releases that the actions of the TnT “effectively doubled our business”. The simple explanation is that the TnT/FFC people made up the quote. You don’t have to take my word for it, you can read it yourself by following the link the TnT people provide (pg. 2, penultimate paragraph). First, it was [Shire City Herbals co-founder] Brian [Huebner] (not Amy) that stated that our business has grown in spite of the boycott. But we still have significant losses linked to accounts with which they have interfered. Their actions damaged our business and our reputation with certain accounts, and our growth rate slowed as a result.
We have learned that even if a few people have referred to a recipe as a fire cider recipe, that is not a trademark use. Shire City is the first company to use Fire Cider in connection with a tonic product sold in interstate commerce and, accordingly, we are entitled to the trademark registration that was issued to us. Rather than correct this misunderstanding, TnT harnessed the ignorance and anger of their constituents and amplified it. Our three person company was deemed “the Monsanto of herbalism” and a campaign of fear mongering began. According to TnT, in a matter of days Shire City Herbals had destroyed thousands of herbal businesses; removed herbal products off of store shelves; sought out and sued small herbal businesses across the nation; we were a branch of Big Pharma, and our trademark was a dangerous precedent that would erode and destroy the herbal tradition in America. These claims were completely fabricated and spectacularly untrue. Sadly, due to the highly charged “breaking news” atmosphere created by TnT over social media, copies of these false and misleading claims were distributed. Within the Facebook echo chamber, rumors became codified as truth. TnT immediately encouraged their readers to contact our retail partners with this false information and demand that they stop carrying our product. This frequently took the form of harassing phone calls and emails, nasty social media posts and 1-star reviews. Lastly, TnT encouraged small herbalists to launch protest “fire cider” products on Etsy and elsewhere, creating conflict where none existed before. For a documented account of these false claims, here is a detailed list covering last summer.
In reality, Shire City Herbals is the only business whose livelihood was threatened; TnT made it clear from the outset that putting us out of business was a top priority. Thanks to the TnT call to remove Shire City’s tonic from stores, our product has been kept off of store shelves. To complete the irony, TnT initiated a legal case against Shire City Herbals. TnT has become the very boogeyman that they so cavalierly sought to destroy, and community support for their misdeeds has flagged accordingly.