We’ve been following Brough Brothers Distillery in Louisville, Kentucky and Fresh Bourbon Distilling Co. in Lexington, Kentucky for more than a year now. They each have made similar claims to being the first African American owned distillery in the state of Kentucky.
Today the claim went up a notch as Brough Brothers Distillery has filed a lawsuit in U.S. District Court to attempt to set the record straight according to the lawsuit.
On behalf of Brough Brothers Distillery law firm Frost Brown Todd (FBT) has filed suit in federal court asking it to rule that Brough Brothers Distillery is the first African American-owned distillery in Kentucky. FBT filed the suit against Lexington-based Fresh Bourbon, claiming unfair competition under federal and state law. It states that other companies marketing themselves as the first black-owned bourbon distillery in Kentucky are violating the Kentucky Consumer Protection Act and the Lanham Act.
What is the Lanham Act?
The Lanham Act, 15 U.S.C. §§ 1051 et seq., was enacted by Congress in 1946. The Act provides for a national system of trademark registration and protects the owner of a federally registered mark against the use of similar marks if such use is likely to result in consumer confusion, or if the dilution of a famous mark is likely to occur. Source: Cornell Law School
Kentucky’s 1st African-American Owned Distillery Makes History as They Fill Their 1st Barrel of Bourbon
Startup Fresh Bourbon Distilling Co. Investing $5.4 Million to Build 34,000 Sq. Ft. Distillery
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Victor and Bryson Yarbrough founded Brough Brothers parent company Victory Global LLC in 2013. They joined with their brother Chris in 2018 to launch Brough Brothers Distillery by obtaining all the necessary state and federal permits. The brothers mashed, fermented, distilled and filled their first barrel of bourbon in December 2020. Brough Brothers Distillery has been assigned a Distilled Spirits Plant number of DSP-KY-62.
“Brough Brothers is the only African American-owned distillery in Kentucky that holds Federal and State permits and thus authorized to distill in Kentucky,” said FBT attorney Chris Robinson. “It is the first to register with the Federal Alcohol and Tobacco Tax and Trade Bureau and Kentucky’s Alcohol Control Board; therefore, Brough Brothers is the only African American owned distillery legally producing bourbon.”
“When we created Victory Global LLC, we recognized the absence of an African American-owned distillery in Kentucky and intended to be the first when we launched Brough Brothers Distillery,” said CEO Victor Yarbrough.
“We’ve worked tirelessly and followed all the legal and required steps to distill and fill our first barrel of bourbon and are in the process of opening our doors to the public in spring 2021. There is no other African American owned distillery in Kentucky. We appreciate the opportunity to present our case before the court and look forward to their decision.”
What Does Fresh Bourbon Have to Say?
We reached out to Fresh Bourbon about the lawsuit but they had no comment at this time. Fresh Bourbon Distilling Co. announced plans in early 2020 to build a $5.4 million distillery in Lexington, Kentucky. To encourage the investment and job growth in the community, the Kentucky Economic Development Finance Authority (KEDFA) in December 2019 gave preliminarily approval of a 10-year incentive agreement under the Kentucky Business Investment program. The performance based agreement can provide up to $200,000 in tax incentives based on the company’s investment of $5.4 million.
Fresh Bourbon is working with another Kentucky distillery to distill its own bourbon with its own recipe.
Brough Brothers Bourbon is Available in 5 States with 20 on the Way
As Brough Brothers Victory Global company has been working in the distilled spirits business for many years they understand the distribution side of the spirits. Brough Brothers is already selling bourbon in five states. The distillery has sourced a six month old bourbon from a well known Indiana distillery and they are bottling it in Kentucky.
“We are selling in five states right now including Colorado, Florida, Indiana, Tennessee and Kentucky with distribution deals set up for another 20 states. We’ll be in Georgia and Texas in January for a total of 25 states by mid-2021.”
FBT filed the case in the U.S. District Court Eastern District of Kentucky at Lexington. A portion of the filing is included below.
COMPLAINT AND PETITION FOR INJUNCTIVE RELIEF AND DECLARATORY JUDGMENT
Plaintiff Victory Global, LLC d/b/a Brough Brothers Distillery (“Victory Global”) for its Complaint against Fresh Bourbon, LLC d/b/a Fresh Spirits Company, Edwards Spirit Company, Fresh Bourbon Distilling Company, and Fresh Spirits (“Fresh Bourbon”) states as follows:
1. This is an action for federal unfair competition for false advertising pursuant to the Lanham Act, common law unfair competition under Kentucky law, unfair and deceptive trade practices under Kentucky statutory law, tortious interference with contractual and business relationships and expectancies arising from Fresh Bourbon’s advertising, marketing, promotion as “first black-owned bourbon distillery in Kentucky,” “the first African Americans who were not enslaved to make Kentucky bourbon,” “One of the first black-owned bourbon distilleries in Kentucky,” and similar claims.
2. Plaintiff Victory Global started Brough Brothers Distillery in 2018. Brough Brothers Distillery is an African American owned bourbon distillery operating in Louisville, Kentucky.
3. Brough Brothers Distillery is the first, and presently the only, African American owned bourbon distillery in the Commonwealth of Kentucky, having obtained the appropriate authorizations from the federal Alcohol and Tobacco Tax and Trade Bureau and Kentucky Alcohol Board Commission.
4. Fresh Bourbon’s false advertising and misrepresentations have caused and will continue to cause injury to Victory Global’s commercial interests.
5. Victory Global is a Kentucky Limited Liability Company with a principal place of business at 1460 Dixie Hwy, Louisville, KY 40210.
6. Fresh Bourbon is a Kentucky Limited Liability Company with a principal place of business at 229 Ellerslie Park Blvd, Lexington, KY 40515. Fresh Bourbon’s registered agent is D. Sean Edwards, 229 Ellerslie Park Blvd, Lexington, KY 40515.
Is Bourbon Justice Something New? Hardly
Bourbon and lawsuits are no stranger to each other. In fact, the book Bourbon Justice: How Whiskey Law Shaped America is dedicated to the topic.
Bourbon whiskey has made a surprising contribution to American legal history. Tracking the history of bourbon and bourbon law illuminates the development of the United States as a nation, from conquering the wild frontier to rugged individualism to fostering the entrepreneurial spirit to solidifying itself as a nation of laws. Bourbon is responsible for the growth and maturation of many substantive areas of the law, such as trademark, breach of contract, fraud, governmental regulation and taxation, and consumer protection. You can learn more about Bourbon Justice here.