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Shire City Herbals, Inc. v. Blue

United States District Court, D. Massachusetts

May 12, 2016

SHIRE CITY HERBALS, INC., Plaintiff,
v.
MARY BLUE d/b/a FARMACY HERBS, NICOLE TELKES d/b/a WILDFLOWER SCHOOL OF BOTANICAL MEDICINE and/or WILD SPIRIT HERBS, and KATHERYN LANGELIER d/b/a HERBAL REVOLUTION, Defendants.

MEMORANDUM AND ORDER REGARDING DEFENDANTS’ SPECIAL MOTION TO DISMISS PURSUANT TO MASS. GEN. LAWS CH. 231, § 59H (Dkt. No. 45)

MARK G. MASTROIANNI United States District Judge

I. Introduction

Shire City Herbals, Inc. (“Plaintiff”) brings a number of claims against Mary Blue d/b/a Farmacy Herbs, Nicole Telkes d/b/a Wildflower School of Botanical Medicine and/or Wild Spirit Herbs, and Katheryn Langelier d/b/a Herbal Revolution (together, “Defendants”). The suit arises out of Defendants’ alleged behavior relating to Plaintiff’s federally registered trademark, FIRE CIDER® (the “Fire Cider Mark”). Plaintiff’s claims are grouped into five trademark-infringement claims and five non-trademark-infringement claims. The non-trademark-infringement claims are for trade disparagement in violation of the Lanham Act (Count IV), unfair trade practices in violation of Mass. Gen. Laws ch. 93A, § 11 (Count VII), tortious interference with contractual relations (Count VIII), tortious interference with prospective business relations (Count IX), and trade libel (Count X). Defendants filed a special motion to dismiss, pursuant to Mass. Gen. Laws ch. 231, § 59H, seeking only to dismiss the non-trademark-infringement claims. The court allows Defendants’ special motion to dismiss in its entirety.

II. Facts[1]

Plaintiff is a corporation with a principal place of business in Pittsfield, Massachusetts. (Dkt. No. 68, Am. Compl. ¶ 5.) Plaintiff manufactures and sells a tonic product comprised of apple cider vinegar, citrus, honey, and spices, which it markets as FIRE CIDER®. (Id. ¶¶ 2, 6.) Plaintiff obtained the Fire Cider Mark on December 18, 2012. (Id. ¶ 14.) Plaintiff has existing business relationships and is developing prospective business relationships in Massachusetts and elsewhere. (Id. ¶ 19.) After obtaining the Fire Cider Mark, Plaintiff began objecting to and seeking removal of similar uses of “fire cider” on commercial websites. (Dkt. No. 52-4, Pl.’s Mem. Opp. Special Mot. to Dismiss (“Pl.’s Mem.”) at 2.) Defendants are individuals living in Maine, Rhode Island, and Texas, who do business under various trade names. (Am. Compl. ¶¶ 7-9.) They manufacture and sell tonic products similar to Plaintiff’s product. (Id.) Defendants have claimed that the Fire Cider Mark is generic, and therefore invalid. Defendants have also demanded that Plaintiff give up its rights in the Fire Cider Mark. (Id. ¶¶ 21-22.) The crux of Defendants’ argument is that “fire cider” is a generic description that has been used by herbalists for decades to describe a type of product similar to Plaintiff’s and Defendants’ products.

On January 25, 2014, Defendant Blue saw a blog post discussing Plaintiff’s registration of the Fire Cider Mark. (Dkt. No. 48, First Blue Decl. ¶ 5.) On January 26, 2014, Defendant Blue created a petition at www.change.org designed to gather signatures in support of canceling the Fire Cider Mark. (Dkt. No. 46, Defs.’ Mem. Supp. Special Mot. to Dismiss (“Defs.’ Mem.”) at 4.) The petition had over 2, 000 signatures within 24 hours (see id.) and currently has over 11, 000 signatures. Also on January 26, 2014, Plaintiff published a blog entry stating it had obtained the trademark to protect itself from larger companies and would discuss the matter with its lawyer. (Dkt. No. 47, First Goggin Decl., Ex. 19.) On January 27, 2014, Defendant Telkes sent an email to Plaintiff asking it to give up the Fire Cider Mark. (Dkt. No. 49, First Telkes Decl., Ex. 1.) In the email, Defendant Telkes stated, “Fire Cider is an exciting and popular remedy that many of my students and friends have wanted me to either mass market or they themselves have been pushed in this direction, ” and also stated, “I really don’t want to see you completely lose all of your business after all of the hard work you have done.” (Id.) That same day, Plaintiff responded that it would discuss the matter with its lawyer. (Id.)

On January 27, 2014, Defendants began organizing a boycott of Plaintiff’s product. (Defs.’ Mem. at 6.) According to Defendants, they sought to unite the herbalist community behind a movement to have Plaintiff’s Fire Cider Mark canceled either by the U.S. Trademark Trial and Appeal Board (“TTAB”) or by Plaintiff itself. (Id. at 5.) Defendants created a website, www.freefirecider.com, and various Facebook pages, including the “Traditions not Trademarks” page. (Am. Compl. ¶¶ 30-31.) These pages have been promoted to approximately 10, 000 individuals. (Id. ¶ 32.) Defendants have published numerous statements to the website and the Facebook pages that Plaintiff alleges to be false, misleading, deceptive, and/or disparaging. (Id. ¶ 33.) Specifically, Plaintiff alleges Defendants made the following wrongful statements: that Plaintiff had sued other herbal companies (id. ¶ 34), that Plaintiff claimed to have originated the recipe sold under the Fire Cider Mark (id. ¶ 35), that Plaintiff claimed other herbalists would be legally barred from selling similar recipes (id.), that Plaintiff was forcing other herbalists to stop making and selling tonics similar to the one sold by Plaintiff, (id. ¶ 36), and that Plaintiff was asking retailers to remove other herbalists’ tonics from their shelves. (Id. ¶ 37.) Plaintiff also points to statements relating to the educational background of its principal. (Id. ¶ 38.)

On February 10, 2014, Plaintiff posted a message to Facebook stating that the only way to make “fire cider” a generic term would be to obtain a ruling from the TTAB. (Defs.’ Mem. at 7.) On June 18, 2014, Defendant Blue filed a pro se cancelation petition with the TTAB. (Id. at 8.) On April 16, 2015, Plaintiff filed this action against Defendants, transferring consideration of the trademark from the TTAB to this court and adding claims that were unavailable before the TTAB, including those that are the subject of the special motion to dismiss. (Id.)

Defendants have used their own websites and Facebook pages, which also promote their own products, to link to the pages supporting the boycott of Plaintiff. (Id. at 7.) Defendant Blue uploaded sample letters to www.freefirecider.com for Defendants and others to send to Plaintiff’s retail accounts. (Am. Compl. ¶ 39.) According to Plaintiff, the letters demanded that Plaintiff’s retail accounts remove Plaintiff’s product from their shelves and replace it with similar products made by Defendants and others. (Id.) Plaintiff has attached a sample letter to one of its pleadings that asks stores “to consider stocking a locally made Fire Cider in your store and removing Fire Cider made by [Plaintiff] from your shelves until they revoke the trademark.” (Dkt. No. 52-9.) Currently, the sample letter on www.freefirecider.com only requests that Plaintiff’s product be removed and does not mention replacing it with other products.

Defendants have incited others to contact Plaintiff’s retail accounts via letters, phone calls, and personal visits, in order to provide allegedly wrongful information and demand that Plaintiff’s product be removed from their shelves. (Am. Compl. ¶¶ 40, 42-43.) For their own part, Defendants Langelier and Telkes contacted certain of Plaintiff’s retail accounts. (Id. ¶ 41.) Defendant Telkes contacted a food cooperative in Texas, of which she was a partial owner, to ask it to remove Plaintiff’s product from its shelves, but she was unsuccessful. (Defs.’ Mem. at 6.) While traveling in New England, Defendant Telkes saw Plaintiff’s product being sold in another store, and suggested that the store “do their research” on Plaintiff. (First Telkes Decl. ¶ 11.) Defendant Langelier contacted a store in Maine to request that it join the boycott, but she was unsuccessful. (Dkt. No. 50, First Langelier Decl. ¶ 5.) Defendant Blue states she has taken time away from her own business to work on the movement to cancel the Fire Cider Mark. (Dkt. No. 56, Second Blue Decl. ¶ 7.) On May 29, 2015, she turned down a new retail account and directed the retailer to the section of www.freefirecider.com listing alternative producers. (Id., Ex. 3.) In December 2015, Defendants donated their products to be sold on an Etsy shop. (Dkt. No. 53, Affirmation of Paul C. Rapp ¶ 5.) Defendants point out the shop was created after this action was filed, is meant to raise money for their legal costs, and includes products from other herbalists. (Dkt. No. 55, Defs.’ Reply Mem. Supp. Special Mot. to Dismiss at 7.)

Allegedly as a result of Defendants’ actions, Plaintiff has lost business with existing and prospective retail accounts, some of which are carrying Defendants’ products instead. (Am. Compl. ¶¶ 45-47.) Defendant Langelier’s website is linked in the “alternative producers of fire cider” section of www.freefirecider.com. (Pl.’s Mem. at 3-4.) Defendant Blue points out this section of the website was created after the filing of this action. (Second Blue Decl. ¶ 4.) According to Plaintiff, Defendant Langelier’s product has replaced Plaintiff’s in numerous stores. (Pl.’s Mem. at 3-4.) The supporting declaration of one of Plaintiff’s principals identifies two specific stores that stated they were carrying Defendant Langelier’s product instead of Plaintiff’s. (Dkt. No. 52-3, Huebner Decl. ¶¶ 7-8.) Defendant Langelier states these stores initiated contact with her. (Dkt. No. 57, Second Langelier Decl. ¶ 4.) Defendant Telkes’s product is now carried in a store with which Plaintiff had been negotiating, but which will no longer deal with Plaintiff. (Pl.’s Mem. at 4.)

III. Discussion

The special motion to dismiss is brought pursuant to Mass. Gen. Laws ch. 231, § 59H, which is commonly known as the “anti-SLAPP law.” “SLAPP” stands for “strategic litigation against public participation.” SLAPP suits are “generally meritless suits brought by large private interests to deter common citizens from exercising their political or legal rights or to punish them for doing so.” Duracraft Corp. v. Holmes Prods. Corp., 691 N.E.2d 935, 940 (Mass. 1998). “The objective of SLAPP suits is not to win them, but to use litigation to intimidate opponents’ exercise of rights of petitioning and speech.” Id. To counter this, the anti-SLAPP law allows a party to bring a special motion to dismiss claims that “are based on said party’s exercise of its right of petition under the constitution of the United ...


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