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March 26, 2026 Get Citation Alerts Download PDF Add Note

Victory Global, LLC v. Fresh Bourbon, LLC

Court of Appeals for the Sixth Circuit

• Citations: None known
• Docket Number: 25-5173
• Panel: Jeffrey S. Sutton, Eric Earl Murphy

• Judges: Jeffrey S. Sutton; Eric E. Murphy; Rachel S. Bloomekatz

• Opinion

• Authorities (19)

• Cited By (0)

• Summaries (0)

• Similar Cases (2K)

• PDF

Combined Opinion

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 26a0093p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

┐
VICTORY GLOBAL, LLC,
│
Plaintiff-Appellant, │

   No. 25-5173

│
v. │
│
FRESH BOURBON, LLC, │
Defendant-Appellee. │
┘

Appeal from the United States District Court for the Eastern District of Kentucky at Lexington.
No. 5:21-cv-00062—Karen K. Caldwell, District Judge.

Argued: December 10, 2025

Decided and Filed: March 26, 2026

Before: SUTTON, Chief Judge; MURPHY and BLOOMEKATZ, Circuit Judges.

---

COUNSEL

ARGUED: Brian M. Johnson, DICKINSON WRIGHT PLLC, Lexington, Kentucky, for
Appellant. Perry Adanick, ROLFES HENRY CO., LPA, Louisville, Kentucky, for Appellee.
ON BRIEF: Brian M. Johnson, DICKINSON WRIGHT PLLC, Lexington, Kentucky, for
Appellant. Perry Adanick, ROLFES HENRY CO., LPA, Louisville, Kentucky, for Appellee.

---

OPINION

---

MURPHY, Circuit Judge. Bourbon has been the cause of many Kentucky controversies.
“The idea of ‘the first distiller,’” for example, “has bemused Kentucky historians and writers for
well over a century.” Henry G. Crowgey, Kentucky Bourbon: The Early Years of
Whiskeymaking 24 (1971). Was the first distiller Evan Williams? Elijah Craig? Some long-
No. 25-5173 Victory Global, LLC v. Fresh Bourbon, LLC Page 2

forgotten settler? See id. at 24–25. And where was this drink first distilled—in Georgetown in
1789 or Fort Harrod in 1774? See Maker’s Mark Distillery, Inc. v. Diageo N. Am., Inc., 679 F.3d
410, 415 (6th Cir. 2012).

This case involves a similar controversy: Which African American-owned company first
distilled bourbon? Victory Global (which does business as Brough Brothers) claims to have
become the “first” when it opened its physical distillery in 2020. But Fresh Bourbon counters
that it was the “first” because its owners physically distilled their brand at another company’s
distillery two years earlier. Disagreeing with Fresh Bourbon’s claim, Brough Brothers sued it for
false advertising under the Lanham Act, 15 U.S.C. § 1125 (a). Brough Brothers, though, fails to
identify any unambiguously false statements that Fresh Bourbon made, so it had the burden to
introduce evidence that Fresh Bourbon’s statements had deceived consumers. It made no effort
to do so. The district court thus properly granted summary judgment to Fresh Bourbon. We
affirm.

I

Congress has designated bourbon as a “distinctive product” of the United States. S. Con.
Res. 19, 88th Cong., 78 Stat. 1208 (1964); 27 C.F.R. § 5.143 (b), (c) & tbl. 1. Yet Kentucky has
a strong claim that bourbon represents a distinctive product of the Bluegrass State alone. See
Maker’s Mark, 679 F.3d at 414–16. This type of whiskey originated in Kentucky, see id. at 415,
and some “95% of the world’s bourbon” still gets made there, Sazerac Brands, LLC v. Peristyle,
LLC, 892 F.3d 853, 855 (6th Cir. 2018).

Kentucky’s bourbon industry consists of a mix of old and new. Most of the best-known
distilleries sit on Kentucky’s “Bourbon Trail.” And some have a history tracing back to the
Founding. See Sazerac, 892 F.3d at 855; Maker’s Mark, 679 F.3d at 415–16. But the industry
has not stood still. In recent decades, the bourbon market has seen an influx of small “craft”
distilleries like the influx of craft brewers in the beer market. See Paul Coomes & Barry
Kornstein for Ky. Distillers’ Ass’n, The Economic and Fiscal Impacts of the Distilling Industry
in Kentucky 2, 6–7, 43, 65–66 (Dec. 31, 2023).
No. 25-5173 Victory Global, LLC v. Fresh Bourbon, LLC Page 3

To distinguish themselves, distillers have long relied not just on their bourbon’s flavor
but also on its branding. See Maker’s Mark, 679 F.3d at 415. Think of the famous red-wax seal
on every Maker’s Mark bottle. See id. at 417. So some of the new craft distillers have marketed
their bourbons to select audiences, such as baseball fans or military supporters. See Our Story,
Big Bat Bourbon, https://www.bigbatbourbon.com/our-story; Our Legacy, Horse Soldier,
https://horsesoldierbourbon.com/pages/our-story. Victory Global and Fresh Bourbon exemplify
this trend because they both advertise that they are “African American-owned, produced, [and]
distilled.” Yarbrough Dep., R.70-4, PageID 773; see Edwards Dep., R.77-1, PageID 1458–60.

Brough Brothers. Three brothers (Victor, Chris, and Bryson Yarbrough) formed Victory
Global in 2013. The company initially operated as an “import-export” distributor that shipped
English cider to the United States and American craft beer and bourbon to England. Yarbrough
Dep., R.70-4, PageID 773. After seeing bourbon sales catch “fire,” the brothers decided to
expand into bourbon production. Id., PageID 774. Their first step involved many visits to
distilleries to identify the “flavor profile” that they liked. Id. They settled on a “crossover
bourbon” made for non-bourbon drinkers. Id., PageID 777. As Victor Yarbrough explained,
their bourbon is “light” and “smooth” with less alcohol by volume than others. Id.

To enter the market quickly, the Yarbrough brothers decided to “source” their bourbon—
that is, to contract with another company to distill it for them. Id., PageID 774. By August
2018, Victory Global had acquired a federal permit. The same month, it registered to do
business as “Brough Brothers Distillery” with the Kentucky Secretary of State. Certificate,
R.83-3, PageID 1942. The brothers sold their first batch of bourbon under the Brough Brothers
label in 2020. An Indiana source distilled this product, so the bottles disclosed that the bourbon
came from the Hoosier State.

In the meantime, the brothers took the steps necessary to do their own distilling. In 2018,
Brough Brothers leased a building in Louisville for these operations. It renovated the building to
turn it into a distillery over the next two years. By November 2020, the brothers had obtained
state and city licenses to distill bourbon at this location. Bryson Yarbrough took on the role of
master distiller. Brough Brothers filled its first barrel of Kentucky bourbon on New Year’s Eve
in 2020. Their distillery also opened for public tours in 2021. It can produce one 53-gallon
No. 25-5173 Victory Global, LLC v. Fresh Bourbon, LLC Page 4

barrel of bourbon every six weeks. The company has since leased a larger building and
eventually hopes to produce 20 barrels a month from there. That said, it has yet to sell its
homemade Kentucky bourbon while waiting for this suit’s completion.

Fresh Bourbon. A married couple (Sean and Tia Edwards) formed Fresh Bourbon in
December 2017. Earlier that year, the Edwardses had decided to start a company that would
make bourbon. Like the Yarbrough brothers, they first tasted “probably over a hundred
bourbons to try to develop what type of taste [they] wanted to derive from the bourbon.”
Edwards Dep., R.70-2, PageID 745. It took them a few weeks to develop their recipe. They
built it “off Tia’s palate,” choosing the grains that would match the bourbon she liked. Id.
Ultimately, they preferred a “sweeter” taste that used a lot of “honey malt” and less rye. Id.,
PageID 750.

Once Fresh Bourbon got its recipe, it faced a problem: it did not own a distillery or
possess licenses to distill. In late 2017, a consultant introduced the Edwardses to Andrew
Buchanan, the head distiller at Hartfield & Co. Distillery in Bourbon County, Kentucky. These
parties hit it off once Buchanan saw the couple’s “passion” for the business. Buchanan Dep.,
R.70-6, PageID 838. They entered a “handshake agreement” that allowed Fresh Bourbon to use
“Hartfield and distill in [its] space” with Buchanan’s assistance. Edwards Dep., R.70-2, PageID
741, 744.

Buchanan’s oversight changed over time. He closely supervised the Edwardses as they
distilled their first batch at Hartfield in early 2018. That May, though, the Edwardses distilled
the next batch with less involvement from Buchanan. By the summer of 2018, Fresh Bourbon
had hired Mike Adams as a master distiller to distill their bourbon at Hartfield. Things
eventually reached a “point where [Fresh Bourbon employees] knew what they were doing”
without Buchanan, and they had “free reign” of the distillery. Buchanan Dep., R.70-6, PageID
847.

Fresh Bourbon first sold the bourbon that it made at Hartfield in 2020. It used Hartfield’s
federal license (under the name Buchanan Griggs) to sell to distributors, and Hartfield would
“funnel that money from the distributor[s] back to” Fresh Bourbon. Id., PageID 841. The label
No. 25-5173 Victory Global, LLC v. Fresh Bourbon, LLC Page 5

on the Fresh Bourbon bottle thus stated: “Distilled and Bottled by Buchanan Griggs Inc. Paris,
Kentucky For Fresh Bourbon Distilling Company[.]” Label App., R.73-21, PageID 1268. Yet
Fresh Bourbon owned the recipe for this bourbon, and Hartfield agreed not to make it for others.

Like Brough Brothers, Fresh Bourbon simultaneously took steps to operate its own
distillery while working with Hartfield. By the fall of 2022, it had obtained the necessary
federal, state, and city licenses to distill at a location in Lexington. It opened this distillery
around the same time and distilled its first batch either in late 2022 or in early 2023. The
Edwardses also have plans to open a much larger Fresh Bourbon distillery in downtown
Lexington.

This case arose out of the parties’ marketing. Brough Brothers and Fresh Bourbon both
promote themselves as African American-owned companies. But they dispute who was first.
The answer might depend on first at what. For example, Victory Global incorporated in 2013
and registered its business name “Brough Brothers” in 2018. Fresh Bourbon, by contrast,
incorporated in between these dates in 2017. Likewise, Brough Brothers obtained its licensing
and opened its Louisville distillery by December 2020, whereas Fresh Bourbon did not obtain its
licensing or open its Lexington distillery until September or October 2022. On the other hand,
Fresh Bourbon began to sell Kentucky-made bourbon (from Bourbon County, no less) in 2020,
whereas Brough Brothers’ sourced bourbon came from Indiana at this time. And the Edwardses
(along with their master distiller, Mike Adams) participated in the distilling process at Hartfield
in 2018, but the Yarbrough brothers did not participate in their Indiana source’s efforts to distill
the Brough Brothers bourbon made in that State.

Given that Brough Brothers and Fresh Bourbon developed side by side, various sources
have made different claims about who came first. For example, soon after Brough Brothers
opened its Louisville distillery in December 2020, one media source called the company “the
first and only Black-owned distillery” in Kentucky. Brewbound Article, R.73-9, PageID 1177.
Yet an earlier LEX 18 news article from February 2020 described Sean and Tia Edwards as “the
first African-Americans to distill bourbon in Kentucky.” LEX 18 Article, R.73-11, PageID
1197. This article quoted Sean as opining that “there were no African American distilleries in
the state of Kentucky” and that there had been “no African Americans producing bourbon” since
No. 25-5173 Victory Global, LLC v. Fresh Bourbon, LLC Page 6

slaves had done so. Id. The same month, the Kentucky Senate passed a resolution recognizing
Fresh Bourbon. The resolution opined that “Fresh Bourbon Distilling Company is considered to
be the first black-owned bourbon distillery in Kentucky,” as well as the first company that
“produces bourbon in the state of Kentucky with an African American Master Distiller . . . since
slavery[.]” Resolution, R.70-3, PageID 768. Fresh Bourbon included a link to the resolution on
its website and a copy of the resolution with a limited-edition batch of commemorative bottles.
The company’s X profile likewise suggested that it was “[t]he first bourbon developed grain to
glass by African Americans in the state of Kentucky.” X Profile, R.73-13, PageID 1212.

Brough Brothers took issue with some of Fresh Bourbon’s claims. Brough Brothers, for
instance, believed that Fresh Bourbon was misleading consumers by claiming to be the “first
black owned distillery in Kentucky” or to have the “first African American Master Distiller in
Kentucky since slavery.” Compl., R.1, PageID 4. In March 2021, therefore, it sued Fresh
Bourbon for (among other things) false advertising under the Lanham Act.

Both sides sought summary judgment. The district court granted summary judgment to
Fresh Bourbon. See Victory Glob., LLC v. Fresh Bourbon, LLC, 2025 WL 366626, at *4–8
(E.D. Ky. Jan. 31, 2025). We review this summary-judgment decision de novo. See Innovation
Ventures, LLC v. N.V.E., Inc., 694 F.3d 723, 728 (6th Cir. 2012).

II

A

The Lanham Act creates a private cause of action for businesses that believe they will
suffer (or have suffered) an injury from false advertising. See Lexmark Int’l, Inc. v. Static
Control Components, Inc., 572 U.S. 118, 131–32 (2014); Lewis v. Acuity Real Est. Servs., LLC,
63 F.4th 1114, 1117–19 (6th Cir. 2023). This cause of action allows a business to sue if a
competitor “uses in commerce . . . any false designation of origin, false or misleading description
of fact, or false or misleading representation of fact, which . . . in commercial advertising or
promotion, misrepresents the nature, characteristics, qualities, or geographic origin of [the
competitor’s] or another person’s goods, services, or commercial activities[.]” 15 U.S.C.
§ 1125 (a)(1)(B).
No. 25-5173 Victory Global, LLC v. Fresh Bourbon, LLC Page 7

We have interpreted this language to establish a multi-part test. See FedEx Ground
Package Sys., Inc. v. Route Consultant, Inc., 97 F.4th 444, 452–53 (6th Cir. 2024). This test
requires courts to ask five questions. First, did the defendant make a “false or misleading”
factual claim about its product or its competitor’s product? Am. Council of Certified Podiatric
Physicians & Surgeons v. Am. Bd. of Podiatric Surgery, Inc., 185 F.3d 606, 613 (6th Cir. 1999).
Second, did this claim “actually” “deceive” (or “tend[] to deceive”) “a substantial portion of the
intended audience” (typically, consumers)? Id. Third, was the claim “material” in that it would
“likely influence [a] deceived consumer’s purchasing decisions”? Id. Fourth, did the defendant
introduce the claim into interstate commerce? Id. And fifth, did the claim cause the plaintiff’s
injury? Id.

The parties debate only the first three elements here. The first one requires a “false or
misleading” statement of fact. See FedEx, 97 F.4th at 452–53. This limit flows out of the
statutory text, which repeatedly refers to factual claims (such as a “false or misleading
description” or “representation of fact” about a product). 15 U.S.C. § 1125 (a)(1). A business
thus cannot sue a competitor over a subjective opinion or exaggerated “puffery” about the
competitor’s product. See Wysong Corp. v. APN, Inc., 889 F.3d 267, 271 (6th Cir. 2018);
Interactive Prods. Corp. v. a2z Mobile Off. Sols., Inc., 326 F.3d 687, 699–700 (6th Cir. 2003).
Instead, a business may challenge only those statements that one can objectively verify as true or
false. See FedEx, 97 F.4th at 453.

We have further divided actionable factual claims into two categories: those that are
“literally false” and those that are merely “misleading.” See La.-Pac. Corp. v. James Hardie
Bldg. Prods., Inc., 928 F.3d 514, 517 (6th Cir. 2019). If a defendant makes a literally false
statement, the defendant can identify no possible framing in which one could consider the
statement true. See FedEx, 97 F.4th at 453. In other words, we can describe literally false
claims as “bald-faced” or “over the top” falsehoods. Id. (citation omitted). A misleading
statement, by contrast, requires a reader to engage in some mental processing to determine its
truth or falsity. Innovation Ventures, 694 F.3d at 736. If, for example, an ambiguous statement
is true under one interpretation but false under another, the statement qualifies as potentially
misleading (not literally false). See Wysong, 889 F.3d at 271; Innovation Ventures, 694 F.3d at
No. 25-5173 Victory Global, LLC v. Fresh Bourbon, LLC Page 8

736–37. The same rule covers a technically true statement that lacks important details. See Am.
Council, 185 F.3d at 615–17. When deciding which bucket a false statement falls into, the court
must consider the statement’s “full context” and read it with everything else in an advertisement.
FedEx, 97 F.4th at 454 (citation omitted).

This distinction between literally false and misleading statements matters to the second
element. See Wysong, 889 F.3d at 270–71. That element asks if the challenged statement has
deceived or could deceive consumers. See Am. Council, 185 F.3d at 613. It thus implements the
statutory causation requirement because a business is not “likely to be damaged” from a false
advertisement that will not fool anyone. 15 U.S.C. § 1125 (a)(1). We “presume” that a literally
false statement “actually deceived” consumers. Wysong, 889 F.3d at 270–71; see Am. Council,
185 F.3d at 614. But we do not accept this presumption for misleading claims. Rather, we
require plaintiffs to present proof of deception (often, consumer surveys) to challenge these
claims. See Wysong, 889 F.3d at 271. The deception standard that these plaintiffs must meet
depends on the remedy they seek. See Am. Council, 185 F.3d at 618. If they request lost-sales
damages, they must show that a false statement “actually deceived” a “significant portion” of the
viewing consumers. Wysong, 889 F.3d at 271 (citation omitted). If they seek injunctive relief
(or so-called damage-control costs), they must show that a false statement had “a tendency to
deceive” these consumers. Balance Dynamics Corp. v. Schmitt Indus., 204 F.3d 683, 690, 692–
93 (6th Cir. 2000) (citation omitted). Either way, if these plaintiffs lack evidence of deception,
their claims that the defendant used misleading advertising cannot survive summary judgment.
See Stolle Mach. Co. v. RAM Precision Indus., 605 F. App’x 473, 487 (6th Cir. 2015).

Other circuits have split over whether the distinction between literally false and
misleading statements also matters to the third element. Compare Pizza Hut, Inc. v. Papa John’s
Int’l, Inc., 227 F.3d 489, 497 (5th Cir. 2000), with Select Comfort Corp. v Baxter, 996 F.3d 925,
939–40 (8th Cir. 2021). That element asks if the challenged claim was material to consumers.
See Am. Council, 185 F.3d at 613. It also implements the statutory causation requirement
because a business is not “likely to be damaged” from a claim that will not affect a consumer’s
decision on which product to buy. 15 U.S.C. § 1125 (a)(1); see Dastar Corp. v. Twentieth
Century Fox Film Corp., 539 U.S. 23, 32–33 (2003); 4 J. Thomas McCarthy, McCarthy on
No. 25-5173 Victory Global, LLC v. Fresh Bourbon, LLC Page 9

Trademarks and Unfair Competition § 27:35 (5th ed.), Westlaw (database updated Mar. 2026).
The Fifth Circuit has stated that literally false statements trigger a presumption of materiality.
See Pizza Hut, 227 F.3d at 497. But other courts have disagreed, suggesting that the Fifth Circuit
confused the materiality and deception elements. See Select Comfort, 996 F.3d at 939–40;
Apotex Inc. v. Acorda Therapeutics, Inc., 823 F.3d 51, 67–68 (2d Cir. 2016); Johnson & Johnson
Vision Care, Inc. v. 1-800 Contacts, Inc., 299 F.3d 1242, 1250–51 (11th Cir. 2002); Cashmere &
Camel Hair Mfrs. Inst. v. Saks Fifth Ave., 284 F.3d 302, 312 n.10 (1st Cir. 2002). And while the
Fifth Circuit cited our American Council decision in support, see Pizza Hut, 227 F.3d at 497, that
case concerned the deception element, see Am. Council, 185 F.3d at 614–18. We thus have yet
to weigh in on this split.

B

The district court rejected Brough Brothers’ challenge to Fresh Bourbon’s marketing on
the second and third elements. See Victory Glob., 2025 WL 366626, at *4–8. The court first
held that Fresh Bourbon made, at most, misleading (not literally false) statements and that
Brough Brothers failed to introduce evidence that the challenged statements deceived consumers.
Id. at *2–6. The court next held that Brough Brothers failed to show that Fresh Bourbon’s
allegedly misleading statements materially affected consumer purchasing decisions. Id. at *7–8.

Because the district court’s two holdings provided independent grounds to rule for Fresh
Bourbon, we may affirm based on either one. See Pichiorri v. Burghes, 162 F.4th 745, 751 (6th
Cir. 2025). And the circuit split on materiality leads us to avoid that question. We instead
affirm because Brough Brothers’ claims fail on deception grounds alone. On appeal, Brough
Brothers does not argue that it introduced any evidence to show that Fresh Bourbon’s statements
deceived (or even had the tendency to deceive) “a significant number” of bourbon consumers.
Wysong, 889 F.3d at 271. Brough Brothers instead argues that it need not present this type of
evidence to withstand summary judgment because Fresh Bourbon made “literally false” claims
that triggered a presumption of deception. FedEx, 97 F.4th at 453. We will consider each of the
challenged claims in turn, grouping three similar statements into the same category. None meets
the high bar for us to give them the “literally false” label. See id.
No. 25-5173 Victory Global, LLC v. Fresh Bourbon, LLC Page 10

1. The first to “distill,” “produce,” or “develop” Kentucky bourbon. Brough Brothers first argues that Fresh Bourbon falsely described itself (or the Edwardses) as the first African Americans to distill, produce, or develop Kentucky bourbon since the Civil War. For example, Fresh Bourbon’s profile on X called the company’s bourbon the “first . . . developed grain to glass by African Americans in the state of Kentucky.” X Profile, R.73-13, PageID 1212 (emphasis added). Similarly, a LEX 18 article suggested that Sean Edwards told the publisher that he had discovered while going through the “process” of starting a bourbon business that “[t]here had been no African Americans producing bourbon” since slaves had done so long ago. LEX 18 Article, R.73-11, PageID 1197 (emphasis added). The article itself (without attribution to the Edwardses) also characterized them as “the first African-Americans to distill bourbon in Kentucky.” Id. (emphasis added). (Because Fresh Bourbon reposted a link to this article on its website, the parties do not dispute that we can attribute this statement to the company. Given the lack of adversarial briefing, we will assume the point.)

According to Brough Brothers, the verbs “distill,” “produce,” and “develop” all articulate
the “unambiguously deceptive” message that Fresh Bourbon made Kentucky bourbon before any
other African American distillery, including Brough Brothers. FedEx, 97 F.4th at 453 (quoting
Wysong, 889 F.3d at 270). At the outset, though, Brough Brothers does not claim to have
evidence that some other African American distillery preceded both companies. To the contrary,
Brough Brothers would like to describe itself as first. So its expert conceded that it was
“impossible to verify” whether other African American distilleries existed before these
companies. Veach Rep., R.73-2, PageID 1102. He had “yet to find” “any written record of
African Americans making whiskey before now, since the Civil War[.]” Veach Dep., R.70-5,
PageID 817. At least with respect to other bourbon makers, then, Fresh Bourbon’s statements
are not “verifiable” as false on this record. La.-Pac. Corp., 928 F.3d at 519.

Brough Brothers instead argues that the statements are literally false because they convey
that Fresh Bourbon made bourbon at its Lexington distillery before Brough Brothers made
bourbon at its Louisville distillery. Yet it is undisputed that Brough Brothers obtained its
distilling licenses and made its first batch of bourbon at its own distillery in December 2020
before Fresh Bourbon completed the same tasks years later. If, then, the challenged statements
No. 25-5173 Victory Global, LLC v. Fresh Bourbon, LLC Page 11

unambiguously suggested that Fresh Bourbon opened its physical location before Brough
Brothers, they would likely be literally false.

But the statements “reasonably convey[]” a “different message[]”: that Fresh Bourbon’s
agents made its Kentucky bourbon first—no matter the physical distillery at which it did so.
FedEx, 97 F.4th at 453. And this understanding of the statement is true. The Edwardses (along
with their master distiller, Mike Adams) participated in the distilling process for Fresh Bourbon
at the Hartfield distillery starting in 2018. The first time they did so, the Edwardses helped
Buchanan physically put the raw materials into the still and undertook the other necessary steps.
Fresh Bourbon agents then took on more responsibility for each new batch. During this time, by
contrast, the Yarbrough brothers sourced their bourbon from Indiana and did not help this
producer in the distilling process. In short, the challenged statements are “ambiguous” and could
convey a truthful idea under one interpretation of their meaning. Am. Council, 185 F.3d at 615.
Because their truth or falsity “depends” on how consumers would interpret the message, they
cannot qualify as literally false. Innovation Ventures, 694 F.3d at 737 (citation omitted).

Brough Brothers disagrees on legal and factual grounds. Legally, it argues that a party
does not “distill,” “produce,” or “develop” bourbon unless the party obtains licenses to open a
distillery. Appellant’s Br. 23. And because Fresh Bourbon made bourbon at the Hartfield
distillery until 2022, Brough Brothers claims that Hartfield (not Fresh Bourbon) distilled,
produced, and developed this product. Indeed, Brough Brothers highlights that Fresh Bourbon’s
bottle stated that it was “[d]istilled . . . by Buchanan Griggs” for Fresh Bourbon. Label App.,
R.73-21, PageID 1268. But this technical claim has no place in the “literally false” calculus—
which requires a “bald-faced” lie. FedEx, 97 F.4th at 453 (citation omitted). Fresh Bourbon’s
use of these verbs does not meet that high standard. In ordinary language, one would naturally
say that a party distilled or produced bourbon when the party put the raw materials into a still and
took the other steps necessary to create the alcoholic beverage at the end. And it is undisputed
that the Edwardses engaged in those activities. These verbs also would remain accurate even if
the party lacked a license. Consider that the bootleggers who “sustain[ed] the continued
production of the drink during Prohibition” did so unlawfully. Sazerac, 892 F.3d at 855
(emphasis added). Taken to its logical end, then, Brough Brothers’ claim would mean that these
No. 25-5173 Victory Global, LLC v. Fresh Bourbon, LLC Page 12

bootleggers did not “produce” or “distill” bourbon. Its argument thus conflicts with the ordinary
understanding of the words.

Factually, Brough Brothers argues that Fresh Bourbon’s agents “merely purchased
bourbon under contract on Hartfield’s license” just like Brough Brothers did with its Indiana
source. Appellant’s Br. 26. But the undisputed record shows otherwise. Buchanan, Hartfield’s
head distiller, explained that Fresh Bourbon’s team eventually had “free reign” of the distillery
and could do pretty much “[e]verything” in the distilling process. Buchanan Dep., R.70-6,
PageID 847. That level of involvement suffices to avoid the literally false category for claims
that Fresh Bourbon distilled, produced, or developed the bourbon that it sold from Hartfield.

1. “[C]onsidered to be the first black-owned distillery in Kentucky.” Brough Brothers next criticizes the Kentucky Senate’s resolution praising Fresh Bourbon in February 2020. In this page-long resolution, the Kentucky Senate stated (among other things) that “Fresh Bourbon Distilling Company is considered to be the first black-owned bourbon distillery in Kentucky[.]” Resolution, R.70-3, PageID 768. And “members of the Senate” then “acknowledge[d] the importance of this being the first black-owned distillery in Kentucky.” Id. Fresh Bourbon’s website links to this resolution, even though Brough Brothers opened its Louisville distillery before Fresh Bourbon opened its Lexington one. So Brough Brothers argues that Fresh Bourbon has “use[d]” a literally “false” “representation of fact” in its marketing materials. 15 U.S.C. § 1125 (a)(1).

We see two problems with this argument. For one thing, Brough Brothers identifies no
evidence showing that Fresh Bourbon itself ever claimed to have opened the first African
American-owned distillery in Kentucky. Indeed, the Edwardses have repeatedly acknowledged
that Brough Brothers opened its physical location first. See Edwards Dep., R.77-1, PageID 1560.
So Brough Brothers concedes that Fresh Bourbon has, at most, asserted only that the Kentucky
Senate “considered” it to be the first. Victory Glob., 2025 WL 366626, at *4; Appellant’s Br.
18–19. That “statement”—even if “misleading”—is not literally false. Am. Council, 185 F.3d at
615. The Kentucky Senate did in fact issue the proclamation, and it did in fact identify Fresh
Bourbon as “the first black-owned distillery in Kentucky.” Resolution, R.70-3, PageID 768.
No. 25-5173 Victory Global, LLC v. Fresh Bourbon, LLC Page 13

For another thing, the word “distillery” could mean different things in different contexts.
True, modern dictionaries usually define “distillery” to mean the physical “works where
distilling” happens. Merriam-Webster Unabridged Dictionary (Online ed. 2026). Also true,
Kentucky law defines “distillery” to mean the “place or premises where distilled spirits are
manufactured for sale, and which are registered in the office of any collector of internal revenue
for the United States.” Ky. Rev. Stat. § 241.010(30). But consumers do not necessarily flip
open a dictionary or check statutes when evaluating products. And Fresh Bourbon introduced
evidence that companies often call themselves a “distillery” even when they are “having a spirit
bottled for” them by others. Knittel Rep., R.70-7, PageID 878. The bottle for Pappy Van
Winkle, for example, states: “Bottled by Old Rip Van Winkle Distillery.” Id., PageID 879. But
no physical “Old Rip Van Winkle Distillery” exists. Id., PageID 880. The “Buffalo Trace
Distillery” makes Pappy’s. Id. Likewise, Brough Brothers registered the name “Brough
Brothers Distillery” in 2018—years before it opened its physical location. Cert., R.83-3, PageID
1942 (emphasis added). And Buchanan suggested that a company could call itself a “distillery”
if it was a “distilling company” even if it did not have a physical location. Buchanan Dep., R.70-
6, PageID 840.

The resolution also suggests that the Kentucky Senate used “distillery” to mean a
company that sells bourbon when it referred to Fresh Bourbon as the first. The resolution, for
example, elsewhere stated that Fresh Bourbon had “announced that they plan to build” a physical
distillery in Lexington. Resolution, R.70-3, PageID 768. Because the Kentucky Senate
recognized that Fresh Bourbon had yet to open such a location, it would have made little sense
for the resolution to refer to Fresh Bourbon’s (unconstructed) venue as the first. And Brough
Brothers’ opening brief does not argue that the resolution’s claim would have been false under
the understanding of “distillery” that means a company that sells bourbon. After all, Fresh
Bourbon sold Kentucky-made bourbon while Brough Brothers still sold Indiana-made bourbon.
In short, the meaning of “distillery” depends on the context, and this “it depends” conclusion
“cannot support a claim of literal falseness.” Innovation Ventures, 694 F.3d at 737 (citation
omitted).
No. 25-5173 Victory Global, LLC v. Fresh Bourbon, LLC Page 14

In response, Brough Brothers argues that we should treat the Kentucky Senate’s
resolution as literally false because Fresh Bourbon played a role in drafting it. At the outset,
Brough Brothers does not explain why a statement’s author should affect whether the statement
is literally false. Yet we need not decide that legal question because the evidence does not
support the argument’s underlying premise: that Fresh Bourbon proposed the allegedly false text.
To the contrary, Sean Edwards proposed a Resolution that would say: “Fresh Bourbon Distilling
Company in Lexington, Kentucky Founded in 2017, is hereby recognized as the First African
American owned Company to produce Bourbon in the State of Kentucky with an African
American Master Distiller Since Slavery.” Texts, R.73-18, PageID 1247. This language did not
include the statement that Brough Brothers now criticizes. So the Edwardses did not author it.

1. “First African American-owned distillery coming to Lexington.” Unable to challenge the Kentucky Senate’s resolution, Brough Brothers turns to criticizing two other statements in the LEX 18 article. The publisher entitled this article: “First African American-owned distillery coming to Lexington.” LEX 18 Art., R.73-11, PageID 1196. And the article elsewhere quotes Edwards to have claimed: “As we went through the process we found out there were no African American distilleries in the state of Kentucky.” Id., PageID 1197.

Yet neither claim is literally false. As for the first, one could “reasonably” interpret the
title to convey that Fresh Bourbon would qualify as the first African American-owned distillery
located in the City of Lexington. FedEx, 97 F.4th at 453. That reading would render the title
true because Brough Brothers’ distillery is in Louisville, not Lexington. As for the second,
Edwards made this statement in February 2020—well before Brough Brothers or Fresh Bourbon
opened their respective locations. Edwards thus correctly explained that “no African American
distilleries” existed “in the state of Kentucky” before then. LEX 18 Art., R.73-11, PageID 1197.

In response, Brough Brothers interprets the title to convey “that the first black-owned
distillery in Kentucky (Fresh Bourbon) was . . . coming to Lexington.” Appellant’s Br. 21.
Perhaps a reader might reasonably come away from the title with this different understanding.
But that fact would only render the title “ambiguous” as to its meaning. Am. Council, 185 F.3d
at 615–16. And we do not treat as literally false an ambiguous statement that is true under one
reading and false under another. See id.; see also 4 McCarthy, supra, § 27:54 & n.8.
No. 25-5173 Victory Global, LLC v. Fresh Bourbon, LLC Page 15

1. The first “African American Master Distiller” since slavery. Brough Brothers separately takes issue with one final claim in the Kentucky Senate’s resolution. This resolution also stated that Fresh Bourbon “produces bourbon in the state of Kentucky with an African American Master Distiller, the first in Kentucky since slavery[.]” Resolution, R.70-3, PageID 768. It thus referred to Mike Adams, whom Fresh Bourbon hired as its “master distiller” in 2018. Edwards Dep., R.77-1, PageID 1373, 1383. According to Brough Brothers, this statement is literally false because Adams lacked the qualifications for the master-distiller title. To support this factual claim, Brough Brothers relies on its expert’s suggestion that a master distiller typically has “20+ years of experience operating a distillery.” Veach Rep., R.73-2, PageID 1102. It also points out that Adams worked full time at a bank and merely had an interest in bourbon as a hobby before he took the job with Fresh Bourbon.

This claim fails because the record shows that whether a producer qualifies as a “master
distiller” depends less on objective “fact” and more on subjective “opinion.” Am. Council, 185
F.3d at 614. As Buchanan explained, the phrase “master distiller” is “more of a symbol” that
some distillers coined in their marketing to become “rock stars with the bourbon people.”
Buchanan Dep., R.70-6, PageID 835. It has evolved to have “no definition.” Id., PageID 836.
So there is “no set experience level” or “no set anything” for that matter. Id. Indeed, the claim
that a master distiller must have 20 years’ experience would disqualify Brough Brothers’ own
master distiller: Bryson Yarbrough. See Yarbrough Dep., R.70-4, PageID 782–83. So the
company’s expert (conveniently) hedged to say that “[s]ome within the industry” also believe
that distillery owners can qualify as master distillers no matter their experience. Veach Rep.,
R.73-2, PageID 1102. This expert thus agreed that “no published criteria” exist for the title.
Veach Dep., R.70-5, PageID 819. Like Buchanan, he added that many view the master distiller
as “more of a marketing person.” Id. And he conceded that it “[b]asically” boils down to “a
matter of opinion[.]” Id. But a plaintiff cannot sue over a “mere opinion” “under the Lanham
Act.” Interactive Prods., 326 F.3d at 700.

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Failing to show that Fresh Bourbon expressly made a literally false statement, Brough
Brothers ends with the claim that all its statements, taken together, “left . . . the clear impression
No. 25-5173 Victory Global, LLC v. Fresh Bourbon, LLC Page 16

that Fresh Bourbon was the first black owned distillery in Kentucky.” Appellant’s Br. 28. True,
we have suggested (in arguable dicta) that an advertisement can convey a false claim “by
necessary implication” if consumers “would recognize the claim as readily as if it had been
explicitly stated.” Innovation Ventures, 694 F.3d at 735–36 (citation omitted). Some have
“criticized” this category of literally false claims, 4 McCarthy, supra, § 27:54.50, but Brough
Brothers seeks to expand it in a significant way. The company asks us to combine statements
from different sources into one “overall marketing scheme” that left an implicit message that
Fresh Bourbon opened its Lexington distillery first. Appellant’s Br. 28. Although we must
consider a single statement in the “full context” of an advertisement, FedEx, 97 F.4th at 454
(citation omitted), we have never treated every advertisement that a business has ever made as
the relevant “context.” Cf. Apotex, 823 F.3d at 67; Design Res., Inc. v. Leather Indus. of Am.,
789 F.3d 495, 503 (4th Cir. 2015).

Ultimately, though, we may simply assume the validity of Brough Brothers’ false-by-
necessary-implication theory. Fresh Bourbon’s collective statements were still, at most,
ambiguous. See Time Warner Cable, Inc. v. DIRECTV, Inc., 497 F.3d 144, 158 (2d Cir. 2007).
Even if they could convey the (false) claim that Fresh Bourbon opened its venue first, they could
also convey the (true) claim that Fresh Bourbon made and sold Kentucky bourbon first. And
courts do not treat as literally false a statement (whether express or implied) that a reader could
take to convey both a truthful assertion and a mistaken one. See id.; 4 McCarthy, supra, § 27:54.

We affirm.