Imagine that words and phrases in the English language could be bought. A company could purchase words and become the only entity who could ever use them.

It would fill our language with landmines, forcing writers to navigate through a whole new kind of stylebook. If we used a forbidden word, we could be sued by the word’s owner. One day our use of words like “iced tea” or “notebook” might be completely fine; the next day, if we tried to use that turn of phrase, we could get our websites shut down.

Sounds like crazy science fiction, doesn’t it?

It’s not.

The US Trademark Office is allowing companies to trademark phrases in common and widespread use, such as the term “fire cider,” just because a company wants to have exclusive rights to using a phrase for a product.

What’s a Trademark?

According to the US Patent and Trademark Office:

A trademark is a brand name. A trademark or service mark includes any word, name, symbol, device, or any combination, used or intended to be used to identify and distinguish the goods/services of one seller or provider from those of others, and to indicate the source of the goods/services.

Trademarks have their purpose. They allow a company to establish a brand name, and they alleviate confusion among consumers. You can’t market your own iPhones or Budweiser if you aren’t Apple or Anheuser-Busch.

In these examples, however, both iPhones and Budweiser beer have unique names that did not exist prior to their invention.

In theory, you can’t register a trademark on a generic phrase, and companies can lose their trademarks when the term becomes so commonplace that it is used in a generic fashion. A few examples: ‘aspirin, ‘kerosene,’ and ‘zipper’ all used to be trademarks, but over time became generic terms and therefore could no longer be protected under trademark.

To prevent the loss of a trademark, it falls to a company to police its own trademarks, and ensure no one is violating its exclusive right to a trademarked term.

Mean-spirited Censorship Pie

What’s scary is that there’s a huge grey area between a product name and generic usage, and the US Trademark Office is doing a poor job of protecting common phraseology.

For example, we know ‘FedEx’ is a trademark, and ‘Coca Cola,’ but how about something like ‘derby pie’?

If you’re like me, since you were a kid you’ve heard people use that term to describe a chocolate pecan pie, sometimes with bourbon. However, Kern’s Kitchen in Louisville, KY was awarded a trademark for “Derby Pie” in the 1960s, and legally, only Kern’s Kitchen is allowed to use that phrase, commercially or otherwise. Over the years, in fact, they have sued many businesses for using the phrase, including restaurants and Bon Appetit magazine.

But Kern’s Kitchen hasn’t just gone after people making a profit on the name of a delicious pastry. In 2013 they threatened a trademark infringement lawsuit against WordPress.com, a service that hosts millions of blogs (including this one). As a result, WordPress.com users who had innocently posted their grandma’s pie recipe had to remove the words “Derby Pie” anywhere it appeared on their blogs, even though the vast majority of them make no money from this content.

As a result of this over-zealous trademark enforcement effort, the Electronic Frontier Foundation named Kern’s Kitchen to their Takedown Hall of Shame. (As a fun side note, during the Derby Pie debacle, WordPress.com encouraged the bloggers to come up with a new name for their pies, like ‘mean-spirited censorship pie’. Some complied.)

In the case of derby pie, Kern’s Kitchen claims to have invented both the recipe and the name, and therefore the trademark is fair, even if enforcement of it borders on the absurd.

What’s troubling is that there is evidence that the US Trademark Office is now awarding trademarks to companies that hijack generic phrases – or those coined by others – so that the companies can have exclusive rights to the term.

The Fire Cider 3

In 2012 the US Trademark Office issued a trademark to Shire City Herbals for exclusive use to the phrase ‘fire cider’ to describe a healing tonic of garlic, ginger, onion, horseradish, hot pepper, apple cider vinegar and raw honey.

In this case, Shire City Herbals didn’t invent the recipe or the name. Fire cider has been around for decades. If anyone has a solid claim to inventing the recipe and naming it, not to mention popularizing it, it would be renowned herbalist, author and educator Rosemary Gladstar, who has been making fire cider – and teaching others to do so – since the 1970s.

Shire City Herbals doesn’t claim to have invented fire cider or the name. According to their own website, one of the company owners, Dana St. Pierre, only began making fire cider in the 1990s, tinkering with his grandmother’s recipe of “horseradish and honey”.

Think on that for a moment. If they had no legal or intellectual claim on it, how did they get a trademark? They won the right to the phrase because they hired a trademark lawyer, and the US Trademark Office took their word for it. Money talks.

So on that logic, could someone with enough money trademark ‘bacon’? Could a company get exclusive rights to ‘backyard garden’? Maybe not, but there was recently another trademark controversy over the Dervaes Institute’s trademark of “Urban Homesteading” (a term they likewise did not invent but now have exclusive rights to use).

As a result of this new trademark on ‘fire cider,’ a number of small businesses and herbalists who have been making fire cider for years, or writing about its health benefits, have had to make a difficult choice: either they change their websites, labels and other marketing materials to comply with trademark law, or run the risk of trademark infringement lawsuits.

In response to the fire cider trademark (and the subsequent cease and desist letters Shire City sent to a number of small producers of fire cider across the country), a number of herbalists decided to fight back, launching an awareness campaign and initiating a petition to the US Trademark Office to cancel the trademark.

To try to get the herbalist movement to back down, in April 2015 Shire City Herbals filed a lawsuit in federal court in Springfield, MA against three herbalists and small business owners: Nicole Telkes, owner of Wildflower School of Botanical Medicine in Texas, Mary Blue, owner of Farmacy Herbs and Community Health & Education Center in Rhode Island, and Katheryn Langelier, owner of Herbal Revolution Farm and Apothecary in Maine.

Despite the lawsuit, the effort to cancel the trademark has enormous support. Rosemary Gladstar is a strong backer of the anti-trademark efforts, saying “fire cider is a tradition, not a trademark.” Over 10,000 individuals have signed a petition against the trademark, and nearly 150 herbalists, schools, and manufacturers have come out in opposition to the trademark, with their logos displayed on the freefirecider.com website. There is also an active boycott against Shire City Herbals’ Fire Cider, and many businesses across the US have been asked to stop carrying the product.

Why does this matter?

In the end, it’s important to recognize that this isn’t just about fire cider, pie or gardening.

It’s about protecting creative expression: recipes, short stories, websites, handcrafted products, and anything else that a greedy company might try to take over. It’s about supporting small businesses and artisans. It’s about respecting tradition and history. And sadly, it is even about protecting the English language itself from corporate predators.

Learn more!

• To learn more about the fight to cancel the fire cider trademark, visit the Free Fire Cider website.
• To contribute to the legal expenses of the Fire Cider Three, there’s an IndieGogo campaign, or you can donate at freefirecider.com.
• Be sure to watch Rosemary Gladstar make a fresh batch of fire cider…. and then make one yourself. It’s so good!

 

Edit (5/5/18)

The U.S. Trademark Office has done it again. This time, they’ve allowed an indie author to trademark the word “cocky” so no one else can use it in the title of a romance book, and the author is now going after people who had the word in their title before the trademark was granted.