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Can you trademark "pizza?" Is it possible to buy the term "hamburger" or "chicken soup"? For products as well-known as these, the answer is probably not.

But what about "fire cider"?

A court case pitting herbalists against a Massachusetts health food company could answer that question next week.

A Surprising Request

Fire cider is an apple cider vinegar-based tonic that includes horseradish, ginger, garlic, onions, cayenne pepper, and honey. Made and sold by herbalists and DIY-ers around the world for decades, the fire cider recipe varies based on local ingredients and taste preferences.

But in 2012, a company called Shire City Herbals trademarked the term "fire cider," claiming they arrived at the name independently after tasting a recipe from the company owner's grandmother.

To be clear, Shire City's trademark applies only to commerce. That means you can still make your own fire cider and publish recipes or other materials with that name, but you can't sell or describe your products using that term.

Soon after receiving the trademark, Shire City Herbals began contacting herbalists selling products called or described as fire cider, asking them to remove the trademarked words in their products, product listings, and tag clouds.

Some companies - like Temple Turmeric and Herbal Revolution - obliged Shire City's request, changing their product names to things like "Fire Tonic" to avoid an expensive legal battle.

But many herbalists and herbal companies refused, like Nicole Telkes and Mary Blue, who filed a petition to reverse the trademark with the U.S. Patent and Trademark Office in June of 2014.

The pair, along with Kathi Langelier of Herbal Revolution (who changed her product name to Fire Tonic in 2014), launched the group Tradition Not Trademark and a nation-wide boycott of Shire City Herbals Fire Cider, and a movement to reverse the trademark was born.

Is Fire Cider a Generic Term?

At the heart of the fire cider debate is the question of what products are able to be trademarked, and what trademark law considers a "generic" term in commerce.

The Shire City Herbals website states: "our trademark doesn't prevent anything that was already happening before it was granted to us, it only prevents businesses who want to compete with us from using our brand name to sell their product."

But can "fire cider" be a part of their brand name? The herbalism community begs to differ, where it is generally agreed upon that the term "fire cider" was invented by notable herbalist Rosemary Gladstar in her 1980 book, "Herbal Healing for Women." Gladstar, known as the godmother of modern herbalism, never sought to corner the term for herself, keeping it open for public use.

Since Gladstar coined the term, hundreds of herbalists and small herbal companies have sold the product under the "fire cider" name for the last 30 years.

And that is what could grant the herbalism community a victory in this case, according to Mark Janis, Director of the Center for Intellectual Property Research at Indiana University Maurer School of Law.

"In trademark law, genericness is a term of art meaning that the alleged mark merely restates the category of goods rather than indicating that the goods come from a particular producer," Janis said, in an email. "A mark that is deemed legally ‘generic' cannot be protected as a trademark. If the phrase fire cider really has been used in the community to refer to a category of tonics, that's good evidence of genericness."

So, if herbalists can prove they have been selling fire cider as a category of tonics as opposed to a product name, that means fire cider is considered generic in the marketplace - much like the terms "pizza," "hamburger," or "chicken soup" - and cannot be trademarked.

What's Next in the Fire Cider Battle

In April of 2015, Shire City Herbals responded to Tradition Not Trademark's reversal petition by filing a civil lawsuit against Telkes, Blue, and Langelier - commonly referred to as "The Fire Cider 3" - alleging trademark infringement and $100,000 in damages to their business during the Tradition Not Trademark-led boycott.

The civil lawsuit against them effectively stalled Tradition Not Trademark's petition to cancel the Fire Cider trademark, forcing it to be heard in federal court.

But the following year, a federal judge threw out counts related to damages from the boycott against the Fire Cider 3 based on an anti-SLAPP law - meaning, their grassroots organizing activities (including the Shire City Fire Cider boycott) were considered free speech in good faith and declared legal.

The Fire Cider 3 now face the trademark infringement counts of the case, providing a federal judge the opportunity to determine whether "fire cider" is indeed able to be trademarked, or if it will remain a generic term in the marketplace.

The trial is set to begin March 25.

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• The Battle for the One, True ‘Fire Cider' (The New York Times)
• In the Line of Fire: How a home remedy started a flame war (Austin Chronicle)
• Fire Cider Controversy (Huffington Post)
• Who Owns The Patent On Nutmeg? (The New Yorker)