Sixth Circuit: No Consumer Deception, No False Advertising Claim Under the Lanham Act

27th Mar 2026
A Lanham Act false advertising claim will fail without evidence that consumers were actually misled. That is the key takeaway from Victory Global, LLC v. Fresh Bourbon, LLC, where the U.S. Court of Appeals for the Sixth Circuit affirmed summary judgment after finding no unambiguously false statements and no proof of consumer deception. The ruling underscores a practical point for businesses: unless a claim is clearly false, liability will turn on whether there is evidence that consumers were misled. The Dispute in Brief The case arose from competing marketing claims between two African American-owned bourbon companies in Kentucky. Victory Global, which does business as Brough Brothers Distillery, was formed in 2013. It began selling bourbon in 2020, initially sourcing product from Indiana, while developing its own Louisville distillery, which became operational later that year. Fresh Bourbon, founded in 2017, took a different approach. Before opening its own Lexington distillery in 2022, its founders participated in distilling bourbon at another Kentucky facility beginning in 2018. Fresh Bourbon first sold that Kentucky-produced bourbon in 2020 through that arrangement. The dispute centred on how Fresh Bourbon described itself in marketing and public materials. These included statements suggesting it was the first African American-owned distillery in Kentucky, the first to distill or produce bourbon, or the first to do so with an African American master distiller. Victory Global argued these claims were false or misleading and brought a false advertising claim under the Lanham Act. What The Court Decided The Sixth Circuit affirmed the district court’s grant of summary judgment to Fresh Bourbon on the Lanham Act false advertising claim. The court held that Victory Global’s claim failed at the deception stage. Because the challenged statements were not “literally false,” Victory Global was required to produce evidence that consumers were actually misled or that the statements had a tendency to deceive. It produced none. Without evidence of consumer deception, the claim could not proceed. How the Court Analysed False Advertising and Consumer Deception The court applied the established Lanham Act framework, focusing on whether the challenged statements were false and whether they deceived consumers. Ambiguity defeated literal falsity A central issue was whether Fresh Bourbon’s statements were “literally false” or merely misleading. The court held that literal falsity requires an unambiguous and objectively incorrect statement. The statements at issue — including claims about being the first to “distill,” “produce,” or “develop” bourbon — did not meet that standard. Instead, they were open to more than one reasonable interpretation. For example, those claims could refer to participation in the distillation process rather than ownership of a physical distillery. On the record, Fresh Bourbon’s founders had participated in distilling bourbon at a Kentucky facility as early as 2018, while Victory Global initially sourced its product from Indiana. Because the statements could convey a truthful meaning, they were not literally false. Context shaped the meaning of key terms The court also emphasised that key terms in the challenged statements did not carry fixed meanings. “Distillery,” for example, could refer either to a physical production site or to a company involved in producing or selling bourbon. In that context, claims about being the “first distillery” were not unambiguously false. The same applied to the term “master distiller.” The record showed that the title has no settled criteria and is often used as a marketing designation rather than an objective measure of qualification. As a result, it could not support a false advertising claim. The absence of consumer evidence was decisive Because the statements were not literally false, Victory Global was required to prove that they misled consumers. The court held that it failed to do so. It produced no evidence showing that a substantial portion of consumers were deceived or that the statements had a tendency to deceive. That failure was determinative. Without evidence of consumer deception, the claim could not survive summary judgment. Key Takeaways for Business No consumer deception, no claim. Where a statement is not clearly false, Lanham Act liability depends on evidence that consumers were actually misled. Ambiguity shifts the burden. If a marketing claim supports more than one reasonable interpretation, it will be treated as misleading rather than literally false. Evidence is decisive. Misleading advertising claims will not survive summary judgment without proof that consumers were misled, such as surveys or comparable evidence. Marketing language is interpreted in context. Terms like “distillery” or “master distiller” do not carry fixed meanings and will be assessed based on how they are used. “First” claims carry risk but are not inherently actionable. Priority-based branding may be defensible where the claim depends on interpretation rather than an objectively false statement. What Happens Next The Sixth Circuit affirmed the district court’s grant of summary judgment to Fresh Bourbon, bringing the Lanham Act false advertising claim to a close on the record presented. The decision leaves intact the lower court’s conclusion that, in the absence of literal falsity and without evidence of consumer deception, the claim cannot proceed. Case Details CourtU.S. Court of Appeals for the Sixth Circuit DateMarch 26, 2026 Case nameVictory Global, LLC v. Fresh Bourbon, LLC Docket numberNo. 25-5173 Area of lawCommercial litigation (Lanham Act false advertising) ResultSummary judgment for Fresh Bourbon affirmed People Also Ask What is required to prove false advertising under the Lanham Act?A plaintiff must show a false or misleading statement of fact, consumer deception, materiality, use in commerce, and resulting injury. If a statement is not literally false, proof of deception is required. What is the difference between literally false and misleading advertising?A literally false statement is unambiguous and objectively incorrect. A misleading statement may depend on interpretation and requires evidence that consumers were actually misled. Why did the claim fail in this case?The court found that the statements were not literally false and that the plaintiff failed to provide evidence of consumer deception. Without that evidence, the claim could not proceed. Can ambiguous marketing statements violate the Lanham Act?They can, but only if there is proof that consumers were deceived or likely to be deceived. Ambiguity alone is not enough. Do terms like “distillery” or “master distiller” have fixed meanings?Not necessarily. The court found that such terms can vary in meaning depending on context and may function as marketing language rather than objective factual claims.