Opinions — Thursday, March 26, 2026

The Sixth Circuit affirmed summary judgment for defendant Fresh Bourbon, LLC on plaintiff Victory Global, LLC's (d/b/a Brough Brothers) false advertising claim under § 43(a)(1)(B) of the Lanham Act. Both bourbon distilleries marketed themselves as "African American-owned," and Victory Global challenged Fresh Bourbon's representations that it was the "first" such distillery in Kentucky, including statements that Fresh Bourbon was "the first African-Americans to distill bourbon in Kentucky," language in a Kentucky Senate resolution recognizing it as "the first black-owned bourbon distillery in Kentucky," and references to its "African American Master Distiller" being "the first in Kentucky since slavery." The court held that none of these statements qualified as literally false, and because Victory Global introduced no consumer survey or other evidence of actual or likely consumer deception, its false advertising claims failed as a matter of law. Victory Global had opened its physical distillery location in Louisville in 2020 before Fresh Bourbon opened its Lexington facility in 2022, but Fresh Bourbon's principals had personally participated in distilling bourbon at a third-party facility (Hartfield & Co.) starting in 2018.

The court's application of the literal falsity doctrine is the doctrinal focus. The court repeatedly emphasized that statements qualify as literally false only when they constitute "bald-faced" or "over the top" falsehoods admitting no truthful interpretation—statements that are "unambiguously false" under any reasonable reading. Here, the challenged statements were ambiguous because "distill," "produce," and "develop" could truthfully describe Fresh Bourbon's hands-on participation in the distilling process at Hartfield beginning in 2018, even though Fresh Bourbon did not own that facility or hold the federal distilling license. The court further held that "distillery" itself carries multiple meanings in industry usage, sometimes referring to a physical location and sometimes to a company that contracts for distillation, rendering the "first distillery" claim ambiguous rather than literally false. Because all challenged statements were at most misleading (not literally false), Victory Global bore the burden of producing evidence that the statements actually deceived or tended to deceive a substantial portion of consumers—a burden it failed to meet, having introduced no consumer surveys or other proof of deception. The court declined to extend the "false by necessary implication" doctrine to permit aggregating statements from multiple sources over time into a single "overall marketing scheme" that might carry an implicit false message.

In Samsung Electronics Co., Ltd. v. Fendgo LLC, the Federal Circuit dismissed the appeal from a Patent Trial and Appeal Board decision in IPR2024-00114 pursuant to a joint stipulation under Federal Rule of Appellate Procedure 42(b), with each side bearing its own costs.

The Federal Circuit affirmed the Patent Trial and Appeal Board's determination that claims 1 and 14–17 of Peter Henrik Pedersen's U.S. Patent No. 6,965,920 are unpatentable as obvious over Funk in view of either Law or Kamakura. The '920 patent relates to automatic filtering of electronic messages using recipient-specified delivery parameters for messages from specific messengers. On appeal, Pedersen challenged the Board's finding that the prior art reference Funk disclosed "messenger-specific, user-specified delivery parameters," arguing that Funk's "information sources" differ from the claimed "messengers."

The court's application of the substantial evidence standard illustrates meaningful deference to Board fact-finding even where the patent owner proffers competing interpretations of the prior art. The Board had relied on multiple Funk disclosures—including a timing processor allowing customers to specify delivery parameters for "certain databases," an inbound email processor enabling third-party sender communication, and a specific example message from "Dave S."—along with expert testimony connecting these features to the claimed limitation. The court held that although alternate readings of Funk existed, a reasonable mind could accept the Board's evidentiary record as adequate, applying the principle from Airbus that substantial evidence exists even where the analysis could have been more developed.