Sixth Circuit Affirms Dismissal in Kentucky Bourbon “First Black-Owned Distillery” Fight — and the Lanham Act Lesson Is a Good One

Every once in a while competing alcohol brands get into a dispute over advertising that turns into a useful lesson about how far “first” claims can go before they become actionable false advertising. We have been following one of those fights for a few years now: the dispute between Victory Global, LLC, doing business as Brough Brothers Distillery, and Fresh Bourbon, LLC, over competing claims tied to being Kentucky’s first African American-owned bourbon distillery.

We wrote about the case in 2023 when the Eastern District of Kentucky held that TTB label approval does not preclude Lanham Act false advertising claims. You can read that earlier entry here: Court finds TTB label approval does not preclude Lanham Act false advertising claims in dispute between two brands looking to claim status as the “First African-American Owned Distillery in Kentucky.”

We also wrote about the district court’s later summary judgment ruling in Fresh Bourbon’s favor. That post is here: Kentucky’s Bourbon Battle: Court Dismisses False Advertising Claims in “First Black-Owned Distillery” Dispute

The Sixth Circuit has now weighed in. In a published opinion, the court affirmed summary judgment for Fresh Bourbon. The appellate court held that Brough Brothers failed to identify any unambiguously false statements by Fresh Bourbon and, because the challenged statements were at most ambiguous or misleading, Brough Brothers needed evidence that consumers were deceived. It did not have that evidence. So the case was over.

The case is Victory Global, LLC v. Fresh Bourbon, LLC, No. 25-5173, decided March 26, 2026.

The Fight Was Always About “First at What?”

The Sixth Circuit framed the issue in a way that anyone who works with beverage advertising should appreciate. Both companies had a story to tell, and both stories had some factual support.

Brough Brothers’ position was that it became first when it opened and licensed its own physical distillery in Louisville in 2020. Fresh Bourbon’s position was that it was first because Sean and Tia Edwards, along with Fresh Bourbon’s team, physically participated in distilling Fresh Bourbon’s Kentucky bourbon at Hartfield & Co. in 2018, before Brough Brothers began distilling at its own facility.

That distinction matters. “First African American-owned distillery in Kentucky,” “first African American-owned company to distill Kentucky bourbon,” “first African American-crafted Kentucky bourbon,” “first licensed Black-owned distillery,” and “first Black-owned physical distillery” are not necessarily the same claim.

That is something we flagged back in 2023. In that post, we noted that a judgment about who owned or licensed distilling equipment would not necessarily stop another company from advertising that it was first to make, craft, direct, or control the production of Kentucky bourbon. The Sixth Circuit’s opinion basically proved that point. The court did not treat licensing status or facility ownership as the only way ordinary consumers might understand verbs like “distill,” “produce,” or “develop.” 

That is a meaningful win for the practical advertising analysis in the earlier post. The “first” claim was always more slippery than either side probably wanted it to be.

The Lanham Act Analysis: Literal Falsity Versus Misleading Ambiguity

The Lanham Act false advertising analysis matters here because it separates statements that are literally false from statements that are merely misleading or ambiguous.

The Sixth Circuit recited the familiar five-part test. A plaintiff must show a false or misleading factual statement, actual deception or a tendency to deceive a substantial portion of the intended audience, materiality, use in interstate commerce, and injury.

The distinction between literal falsity and misleadingness is critical. If a statement is literally false, consumer deception can be presumed. But if the statement is ambiguous or merely misleading, the plaintiff must prove deception, often through consumer survey evidence. The Sixth Circuit emphasized that literal falsity is reserved for statements where there is no reasonable true reading. The court used the familiar idea that these must be “bald-faced” or “over the top” falsehoods.

That was the problem for Brough Brothers. The challenged “first” statements could be read more than one way. Some readings helped Brough Brothers. Some readings helped Fresh Bourbon. That kind of ambiguity is not enough for literal falsity.

And once the court held that the statements were not literally false, Brough Brothers needed evidence that consumers were actually deceived or likely to be deceived. The Sixth Circuit said Brough Brothers did not argue that it had introduced that evidence. That is why the court affirmed on deception grounds alone.

The Sixth Circuit Avoided the Materiality Split

The district court ruled against Brough Brothers on both deception and materiality. Our 2025 post focused on both points, correctly noting that false advertising plaintiffs need proof that the challenged statement deceived consumers and mattered to purchasing decisions. 

The Sixth Circuit, however, did not need to reach materiality. The court noted a circuit split over whether literal falsity also gives rise to a presumption of materiality. The Fifth Circuit has said yes. Other courts have disagreed. The Sixth Circuit did not decide the issue because deception alone disposed of the case.

That leaves the materiality-presumption question open in the Sixth Circuit. But it does not soften the practical lesson. If you are challenging an ambiguous advertising claim, you had better be ready with evidence of consumer deception. And if you also need to prove materiality, you had better be ready with evidence that the statement mattered to purchasing decisions.

“Distill,” “Produce,” and “Develop” Did Not Mean “Own the Licensed Facility”

Brough Brothers argued that Fresh Bourbon could not truthfully claim priority in distilling, producing, or developing Kentucky bourbon because Fresh Bourbon did not yet have its own licensed physical distillery when the Edwardses were working with Hartfield.

The Sixth Circuit rejected that as too technical for literal falsity. The court looked to ordinary language. In ordinary usage, a party can distill or produce bourbon when it physically participates in putting raw materials into a still and taking the steps needed to create the spirit. The court also noted that Fresh Bourbon’s team eventually had “free reign” of Hartfield’s distillery and could do essentially everything in the distilling process.

So Fresh Bourbon’s statements could truthfully mean that Fresh Bourbon’s agents made Kentucky bourbon before Brough Brothers’ agents did, even if Brough Brothers opened its own licensed physical distillery first. That duality made the statements ambiguous rather than literally false.

This is a useful point for beverage lawyers and brands. Regulatory status matters. DSP status matters. Label statements matter. Facility ownership matters. But ordinary consumer meaning also matters. The Lanham Act is not always going to translate a regulatory distinction into a consumer-facing false advertising violation.

“Distillery” Can Mean More Than Bricks and Mortar

The court also rejected the argument that “distillery” had only one possible meaning.

Brough Brothers argued that Fresh Bourbon could not be considered the first Black-owned bourbon distillery in Kentucky because Fresh Bourbon had not opened its own physical Lexington facility before Brough Brothers opened its Louisville location. The Sixth Circuit recognized that dictionaries and Kentucky law often define distillery as a physical place where spirits are manufactured. But the court also found that consumers do not necessarily read advertising like lawyers read statutes. In ordinary marketing usage, “distillery” can sometimes refer to a company or brand, not only a physical plant.

The court pointed out, among other things, that Brough Brothers itself registered “Brough Brothers Distillery” before opening its physical location. The court also noted examples of bourbon companies using “distillery” in a brand or company sense even where the named entity is not the physical facility making the product.

That is a very practical holding. Beverage brands often use words that have both regulatory meanings and looser marketplace meanings. “Distillery” is one of them. “Producer,” “maker,” “crafted,” “bottled by,” “for,” “by,” and “from” can all carry similar problems.

The Kentucky Senate Resolution Helped Fresh Bourbon, But It Is Not a Magic Shield

Fresh Bourbon relied in part on a Kentucky Senate resolution that said Fresh Bourbon was “considered to be the first black-owned bourbon distillery in Kentucky.” The Sixth Circuit treated the wording carefully.

First, the court noted that Fresh Bourbon had, at most, said the Kentucky Senate considered it to be first. That is different from Fresh Bourbon independently making the broadest possible claim. Second, the court reasoned that the Senate resolution itself appeared to use “distillery” in the company or brand sense, because the same resolution recognized that Fresh Bourbon still planned to build a physical distillery in Lexington.

This slightly refines one of the takeaways from our 2025 post. We said state recognition could help support advertising claims. That remains true. But the Sixth Circuit did not create a broad “state recognition safe harbor.” A proclamation, resolution, award, or certification can help provide context. It does not make a brand immune from a Lanham Act challenge if the brand overstates what the recognition actually says.

So the best practice remains: quote the recognition accurately, identify the source, and do not expand it into a broader advertising claim than the source supports.

“First African American-Owned Distillery Coming to Lexington” Was Not Literally False

The Sixth Circuit also addressed a LEX 18 headline that referred to the “First African American-owned distillery coming to Lexington,” along with Sean Edwards’s statement that there were no African American distilleries in Kentucky at the time.

The court held that the headline could reasonably be read as saying Fresh Bourbon would be the first African American-owned distillery in Lexington, not necessarily the first in all of Kentucky. That reading made the headline true because Brough Brothers was in Louisville. The court also held that the February 2020 statement about there being no African American distilleries in Kentucky was true when made, because neither Fresh Bourbon nor Brough Brothers had opened its physical location yet.

Again, the point is context. A statement that can be read truthfully in context will usually not qualify as literally false.

“Master Distiller” Was Too Subjective

Brough Brothers also challenged the claim that Fresh Bourbon had the first African American Master Distiller in Kentucky since slavery.

The Sixth Circuit held that this was not an objectively verifiable false statement on the record before it. The court noted testimony that “master distiller” has no fixed definition, no set experience requirement, and is often used as a marketing title. Brough Brothers’ own expert conceded there were no published criteria and that the title was basically a matter of opinion.

That is another useful point for the industry. Titles like “Master Distiller,” “Master Blender,” “Master Brewer,” “artisan,” “craft,” and similar honorifics can be powerful marketing language. But unless there is an objective standard that makes the title verifiably true or false, a Lanham Act plaintiff will have a hard time treating the title as actionable false advertising.

That does not mean a brand should be careless with titles. It means a plaintiff needs more than disagreement over whether the person deserves the title.

The “Overall Marketing Scheme” Argument Did Not Save the Case

Brough Brothers also argued that even if no single statement was literally false, Fresh Bourbon’s statements collectively created the clear impression that Fresh Bourbon was the first Black-owned distillery in Kentucky.

The Sixth Circuit was not persuaded. It assumed, without deciding, that a false-by-necessary-implication theory could apply. But the court said Fresh Bourbon’s collective statements were still ambiguous at most. Even if the statements could imply the false claim that Fresh Bourbon opened its own venue first, they could also imply the true claim that Fresh Bourbon made and sold Kentucky bourbon first. Courts do not treat that kind of mixed, ambiguous message as literally false.

That is important. Context matters, but context is not an invitation to pile every statement, headline, social media profile, legislative resolution, and marketing reference into one worst-case implied claim. If the overall message is still reasonably susceptible to a truthful reading, the plaintiff needs consumer-deception evidence.

Where Our Prior Analysis Held Up

The 2023 post held up well in two important ways.

First, we said TTB label approval does not preclude Lanham Act false advertising claims. That remains true. The Sixth Circuit did not disturb that point. Alcohol label approval is important, but it does not give a brand blanket immunity from competitor false advertising suits. 

Second, and more importantly for this appeal, we flagged the exact ambiguity problem. We wrote that a ruling about who owned equipment or held licenses would not necessarily stop another company from making claims about being first to make, craft, direct, or control the production of Kentucky bourbon. The Sixth Circuit’s treatment of “distill,” “produce,” and “develop” follows that same practical logic. 

The 2025 post also held up well. We wrote that the district court’s ruling underscored the need to prove materiality and consumer deception. The Sixth Circuit affirmed on deception grounds and avoided materiality, but the core point remains right: once a statement is ambiguous rather than literally false, a plaintiff needs evidence. Assertions that the claim is important to the industry, unfair to a competitor, or central to a brand story are not enough. 

The one refinement is that we should be careful about describing state recognition as a “safe harbor.” The Senate resolution helped Fresh Bourbon, but it helped because of its wording and context. It did not operate as immunity.

Why This Matters for False Advertising Cases

This opinion is useful because it reminds brands and litigators what the Lanham Act does and does not do.

The Lanham Act is a powerful false advertising tool. It can stop competitors from making false or misleading statements about products, services, qualities, characteristics, or geographic origin. But it is not a general referee for every dispute over bragging rights. It does not automatically turn an imprecise priority claim into liability. And it does not relieve a plaintiff of the burden to prove consumer deception when the statement has more than one reasonable meaning.

For beverage companies, the practical lesson is clear: “first” and “only” claims should be drafted with precision. First licensed facility. First physical distillery. First African American-owned bourbon brand. First to distill at its own facility. First to develop a Kentucky bourbon recipe. First to sell Kentucky-distilled bourbon. First in Lexington. First in Louisville. First in Kentucky.

Those are different claims. They may sound similar in a press release, but they are not the same in litigation.

For plaintiffs, the lesson is equally clear. Before bringing a Lanham Act false advertising case, identify the exact statement, the exact audience, and the exact reason the statement is false or misleading. Then ask whether the statement is literally false under every reasonable reading. If the answer is no, you need evidence of consumer deception. Usually that means survey evidence or something comparable.

And yes, that costs money. Which brings us to the practical point.

The Expensive Lesson

This always looked like a very expensive fight over a very small number of words.

That does not mean the history was unimportant. It is important. African American ownership and participation in Kentucky bourbon is important. Both companies had meaningful stories to tell. Both could market those stories. Both could speak to a changing bourbon industry and to consumers who care about who owns, develops, makes, and stands behind the products they buy.

But litigation over who gets to own the broadest version of “first” is a dangerous way to spend money. Once the court concluded that the claims were ambiguous rather than literally false, Brough Brothers needed consumer-deception evidence. Without it, the Lanham Act claim could not survive.

That is the recommendation for brands: seriously consider what kind of case you are bringing before you bring one like this. Are you challenging a statement that is actually, objectively, and unambiguously false? Or are you challenging a statement that is imprecise, incomplete, annoying, aggressive, or true under a different framing?

If it is the latter, ask whether you have evidence that consumers were deceived. Ask whether you can prove the statement mattered to purchasing decisions. Ask whether the cost of discovery, surveys, experts, appeals, and years of litigation is worth the business objective.

Because the Sixth Circuit has now given beverage brands a published reminder: ambiguity is not literal falsity, and without consumer-deception evidence, an ambiguous “first” claim is not likely to make a Lanham Act false advertising case.