On Trademarks and the Herbal Community

Originally Published February 18, 2014 

We herbalists have had some deep thinking and considering to do as a community lately and as others have noted elsewhere, it is nothing short of inspirational to see us all coming together; not only discussing the many issues that have been brought up by the Fire Cider fiasco but also mobilizing ourselves to collectively challenge a registered trademark claim on a true folk medicine if ever there was one. What follows is my personal contribution to the ongoing discussion.

I began my small herbal products business back in 1989 when I had four kids under the age of ten and was searching for a way to channel my love for the herbs, healing, natural gardening and medicine making into a right and sustainable livelihood to support my family. I began teaching herb classes shortly after.

Fast forward twenty five years…our farm is still going strong, in fact we just expanded our growing area and built a new herb production building. We’ve got a forest restoration project starting this spring on a piece of newly acquired and recently cut-over woodland that we plan to transform with the help of our community into a wild medicinal plant sanctuary over the next several years.

What started as a small herb garden on the side of our house has evolved into four acres of medicinal herbs and next year I hope will be seven acres under cultivation. Over the last couple of years we’ve organized the Maine Organic Herb Growers Cooperative and with four other local farms we are creating jobs in farming for the local community and having a small but positive impact on what is otherwise a pretty depressed area, economically.

Our farm and herbal products business have been growing slow, steady and strong alongside our family all these years and now my grandsons are learning about plant and soil care, making teas and rose water and filling bottles and boxes.

My herbal work and the unique formulas I’ve created over the years are precious to me. They come to me in inspired moments, are whispered to me by the plants, passed to me in dreams by my ancestors. Some are inspired by the work of other herbalists, from ancient times to the present.

They are all the result of diligent study, much personal work with the plants in their natural habitat and in the gardens, persistent application, observation and experimentation over many years. They began seeping onto paper in the early morning hours while children slept and the sound of their steady, rhythmic breathing brought me comfort and opened a creative portal. Over the years they have continued to evolve.

These simple, unheralded, herbal formulas have benefited many people. Babies have been conceived and born, overheated menopausal women have been cooled, pains have been eased, digestive woes calmed and hemorrhoids, as well as frayed nerves, have been soothed. Simple, quiet, humble work. Deeply satisfying.

And all the while this wild hearted herbal work, these simple herb tea blends and compound formulas, have also supported and sustained my family; think basics like food on the table here…basketball sneakers, winter jackets and boots, college books…in many ways they represent the many daily sacrifices made along the way to raising a family while creating a self sustaining farm, herbal business and learning center while respecting the earth, the plants, myself and those I serve, work with and care for.

And, as any small business owner knows, the personal sacrifices never end. Most recently they’ve included draining my savings to construct a GMP compliant workspace in order to confidently remain in business. The alternative would have been to retire…but I’ve been an organic farmer and herbalist all my adult life. There is no retirement for people like me.

What I am describing here, my sister and fellow herbalists, is what can truly be referred to as a major lifetime investment. This is what dedication to one’s craft looks like across time. This is persistence. We’re not talking three or four years of effort here. And I realize, and take great pleasure in knowing, that there are many of us who are walking this same blessed wild heart path with the plants. Operating in similarly small, local community circles, throughout the world. All of these small circles somehow interconnected, nourishing each other, creating our broad and thriving, diverse herbal community.

At times there are bumps in the road that challenge us to take personal action we might not ordinarily consider. Case in point: a few years ago, when a local former student of mine began aggressively marketing products with menstruums, names and formulas the same as my own and using descriptive language that was uncomfortably similar, I became concerned. (Please note here I’ve had literally hundreds of students all of whom I’ve openly shared recipes and preparation methods with over the years. I wholeheartedly and enthusiastically support and encourage any student who wants to start an herbal business and move into the marketplace.

However, I do expect them to be creative and express their uniqueness…not to copy my work and pass it off as their own.)

When directly discussing my concerns with the offending party had no result, I consulted with a dear high school friend of mine who is a trademark specialist. She advised me to simply put the trademark symbol next to each of my product names on our website as a way of signaling this person directly and also protecting my work in the future. By doing this I would be invoking common law, the people’s law, to establish ownership of my unique formulas in the common arena.

The way my friend described it to me, one does not need to actually register the trademark, pay big money and get lawyers involved…the symbol itself presents a clear message…a boundary…it says to students and possible competitors, “you are free to use these exact same herbs if you want to (every product on my website has its complete list of ingredients clearly listed) in any formula you make for your own use, but please do not use this same name with these exact herbs and bring it to market to compete directly against me.”

After weighing my concerns and considering my friend’s advice, I decided this was an acceptable use of the trademark laws and symbol. The way I see it, invoking common law is more a request for due respect than the establishment of exclusive, legally binding ownership…though it is entirely legal…it is using the people’s law to stand your ground, establish authorship, protect one’s work and continue to maintain a vibrant family business that in this case provides herbal medicines to said people.

My friend offered to send a cease and desist letter as well, but I declined, feeling that the party was already well aware of the situation from my point of view. I decided instead to give her time to reevaluate her path and perhaps change course.

On one of the forums dedicated to the fire cider trademark situation I read a quote by David Hoffman regarding the conflict between business and healing. I have to say, I think Hoffman is 100% right…there is business and there is healing.

If what you really want to do is get out there, create a strong brand and aggressively market your herbal products, get them into stores across the country, and so on, that is perfectly fine. In fact, it’s needed. People go to stores to buy stuff, including herbs, every day.    Just know that you are following a business model.

If, on the other hand, you are focused on the healing or educational work you are doing with the plants and your business is growing organically, client by client, student by student, that is another, perhaps more ancient and ultimately I think, a far more satisfying model. The healers’ path. In the end I think it is all a matter of personal choice.

The fact is we all need money to survive. Earning that money while demonstrating respect for the whole circle of life, including each other, is the challenge and the guideline. We all want to do our work freely and honorably. We want to protect our work and our investments while being fair, honest, upright and ethical. We want to respect our traditions. What I’ve noticed is that these words can mean different things to different people and we are all still learning.

Finding the balance between the healing work and the business, between the desire to serve and the need to earn a buck, these are real life considerations; this is the challenge…one foot in front of the other.

So, my friends, these current rounds of discussion and cooperative efforts within our community has been really liberating and in my opinion, deeply nourishing to be a part of…I am grateful to be discussing, considering and taking action on these matters along with such an intellectually rich, authentic and wild hearted group of people.  Thank you!