                             PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-1990


DESIGN RESOURCES, INC.,

                Plaintiff - Appellant,

           v.

LEATHER INDUSTRIES OF AMERICA; DR. NICHOLAS J. CORY; ASHLEY
FURNITURE INDUSTRIES, INC.; TODD WANEK,

                Defendants - Appellees.


Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.   William L. Osteen,
Jr., Chief District Judge. (1:10-cv-00157-WO-LPA)


Argued:   May 13, 2015                    Decided:   June 18, 2015


Before NIEMEYER, DUNCAN and THACKER, Circuit Judges.


Affirmed by published opinion. Judge Duncan wrote the opinion,
in which Judge Niemeyer and Judge Thacker joined.


ARGUED:    John Raymond Neeleman, LANE POWELL, PC, Seattle,
Washington, for Appellant.    William Andrew Copenhaver, WOMBLE
CARLYLE SANDRIDGE & RICE, LLP, Winston-Salem, North Carolina;
Richard Dominick Milone, Jr., KELLEY DRYE & WARREN LLP,
Washington, D.C., for Appellees.     ON BRIEF: Kristin Beneski,
LANE POWELL, PC, Seattle, Washington, for Appellant.    Cameron
Argetsinger, KELLEY DRYE & WARREN LLP, Washington, D.C., for
Appellees Leather Industries of America and Dr. Nicholas J.
Cory; Brent F. Powell, WOMBLE CARLYLE SANDRIDGE & RICE, LLP,
Winston-Salem, North Carolina, for Appellees Ashley Furniture
Industries, Inc. and Todd Wanek.
DUNCAN, Circuit Judge:

      Plaintiff-Appellant Design Resources, Inc. (“DRI”), appeals

the   district    court’s    entry    of       summary   judgment     in    favor   of

Defendants-Appellees Leather Industries of America (“LIA”) and

Ashley    Furniture   Industries,         Inc.    (“Ashley”),    on   DRI’s    false

advertising claim under the Lanham Act, 15 U.S.C. § 1125(a).

DRI alleged that an advertisement placed in a trade magazine by

Ashley    (the   “Ashley    Ad”),    as    well    as    two   statements     by    Dr.

Nicholas Cory, director of LIA’s research laboratory, which ran

in articles in the same publication, were false and misleading.

The district court granted summary judgment to LIA and Ashley,

concluding that DRI had not presented sufficient evidence to

establish a Lanham Act claim.              For the reasons that follow, we

affirm.



                                          I.

                                          A.

      Appellee Ashley is the fifth largest furniture manufacturer

in the United States.         J.A. 116.          In addition to manufacturing

furniture, Ashley operates and licenses retail locations that

bear its name, and it sells its furniture to other retailers,

such as Costco and Walmart.               J.A. 986-88.         Appellee LIA is a

leather    industry   trade    association,          which     owns   the    Leather



                                          2
Research Laboratory (the “Laboratory”). 1                Dr. Nicholas Cory is a

leather chemist and the director of the Laboratory.                        He and his

lab provide labeling advice to companies who market leather and

leather-look products, as well as testing services to determine

such       products’     leather    content      for    purposes      of     federally

mandated disclosure to consumers.

       Appellant DRI develops furniture coverings and sells its

products        to    furniture    manufacturers.            In    late    2006,     DRI

developed a “synthetic leather-look furniture covering product,

which      it   initially      called   ‘Veneto’”        and      later    renamed   as

“NextLeather®.”              Appellant’s   Br.    at     8.         NextLeather®      is

“composed        of    61%    polyurethane,      22%     poly/cotton,        and     17%

leather.”        Id.    “[I]t has a polyurethane face on a fabric core

and is backed with a thin layer of leather fibers adhered (i.e.,

bonded) to its base or underside.”                     Id.     The use of leather

fibers as backing, as opposed to “single-piece leather ‘splits’

. . . , represented an improvement in the ability of a leather-

look product to mimic real leather . . .                       because it made the

material more pliable and allowed it to drape more fluidly over

       1
        There was a factual dispute below concerning LIA’s
ownership of the Laboratory.    The district court did “not find
that factual dispute material” to its decision and therefore
“reache[d] its legal conclusion without resolving [the] issue.”
J.A. 1760 n.2. Because we affirm the district court’s grant of
summary judgment to LIA, this factual question is not relevant
to our analysis either, and therefore need not detain us.


                                           3
a furniture frame.”        Appellant’s Br. at 8.

     In December 2006 and January 2007, DRI requested labeling

advice and composition testing of its NextLeather® product from

Dr. Cory at LIA’s laboratory.          Dr. Cory advised that the product

could “ABSOLUTELY NOT!” be characterized or marketed as leather.

J.A. 261.     He cited the Federal Trade Commission’s Guides for

Select Leather and Imitation Leather Products (“FTC Guides”),

which    specify    that    products    containing     ground       or    shredded

leather, rather than comprising “wholly the hide of an animal[,]

should not be represented, directly or by implication, as being

leather.”    J.A. 261 (quoting 16 C.F.R. § 24.2(f) 2).              Instead, Dr.

Cory suggested, DRI could label NextLeather® as “[n]ot leather,”

“[r]econstituted leather,” or “[b]onded leather.”               J.A. 261.

     In early 2007, DRI began marketing NextLeather® as “bonded

leather,” disclosing the product’s composition on a label in

compliance   with    the    FTC   Guides.     DRI   viewed    its     product   as

innovative and believed that “NextLeather® was the first and

only such product marketed as ‘bonded leather.’”                J.A. 1289-90.

In   preparation    for     the   Spring    High    Point    Market      in   North

     2
       Dr. Cory referred to the FTC Guides in place in 2006,
which remained in effect throughout the underlying litigation.
In 2007, the FTC sought public comment on whether to revise the
Guides, 72 Fed. Reg. 28,906, 28,907 (May 23, 2007) (to be
codified at 16 C.F.R. pt. 24), but in 2008, decided to retain
them unchanged, 73 Fed. Reg. 34,626, 34,630 (June 18, 2008) (to
be codified at 16 C.F.R. pt. 24).


                                       4
Carolina--an        important,        annual       furniture         industry       event--DRI

sold    samples        of      NextLeather®            to   25        leading        furniture

manufacturers.             Those manufacturers would then debut furniture

products made with NextLeather® at the Spring High Point Market,

from March 26 to April 1, 2007.

       In the weeks leading up to and following the Spring High

Point       Market,        Ashley     placed       a    series        of   full-page           ads

in Furniture Today, a widely read trade magazine.                              According to

DRI, one of the ads--which ran in the March 12, March 31, and

April 30, 2007 issues--contained false statements about DRI and

NextLeather®.          In relevant part, the text of the ad read as

follows:      “Is It REALLY LEATHER? . . . Some upholstery suppliers

are using leather scraps that are mis-represented as leather

. . . .        Know    What     You    Are     Buying[.]         REMEMBER       .    .     .   The

Overseas Manufacturer Has NO Liability In The U.S.A.                                 You Do!”

J.A. 274, 281, 283 (third ellipsis in original).

       On    July     2,    2007,     Furniture        Today   published        an       article

written by Joan Gunin and entitled, “Chemist fears confusion

over imitators may hurt category.”                     J.A. 86.        This article (the

“Gunin Article”) quoted Dr. Cory as saying the following:                                      “To

call [leather alternatives such as bonded leather] ‘leather’ is

outright       deception,           outright       fraud.        .     .   .        It’s       not

leather. . . . It’s a synthetic that has leather fibers glued to

the underside.”            J.A. 86 (second ellipsis in original).

                                               5
     A week later, on July 9, 2007, Furniture Today published an

article written by Susan Andrews and entitled, “For consumers’

sake, let’s not call it ‘bonded leather.’”                           J.A. 108.        This

article    (the    “Andrews     Article”)         referred     to    “[n]ew    composite

fabrics    now    called      ‘bonded    leather,’”          which   “have    a    surface

layer of vinyl or polyurethane, a center layer of fabric, and a

backing that contains some leather fibers . . . glued onto the

fabric for a look that is similar to the back of a leather

hide.”     J.A. 108.       The article’s author advocated against using

the term “bonded leather” to refer to these products by arguing

that the term is “bound to confuse consumers, who are likely to

hear only the word ‘leather.’”                    J.A. 108.          The article then

quoted Dr. Cory as saying that calling these products bonded

leather “is deceptive because it does not represent its true

nature.       It’s     a   vinyl,       or    a   polyurethane        laminate      or   a

composite,       but   it’s    not   leather.           If    you    tar    and    feather

someone, does that make them a chicken?”                     J.A. 108.

                                             B.

     In February 2010, DRI filed suit against Ashley, Todd Wanek

(Ashley’s president and CEO), LIA, and Dr. Cory.                             It asserted

false     advertising      claims       under     the    Lanham      Act,     15   U.S.C.

§ 1125(a), as well as various violations of North Carolina and




                                             6
Washington law. 3       In September 2012, the district court granted

Wanek’s and Dr. Cory’s motions to dismiss for lack of personal

jurisdiction.        J.A. 161.        While these two individuals are listed

as Appellees in this case, DRI does not seek review of the

district court’s September 2012 order.                    See Appellant’s Br. at

26.

      DRI made the following arguments before the district court.

Regarding      the    Ashley    Ad’s    statement--that       “[s]ome      upholstery

suppliers are using leather scraps that are mis-represented as

leather”--DRI        asserted    that       “[a]ll    informed    readers”    of    the

Ashley    Ad   knew    that     the    ad    was     “referring   to    DRI   and   its

NextLeather® bonded leather” because DRI was the only company

selling the kind of product described.                  J.A. 47.       It argued that

the ad was false because DRI was not marketing its product as

leather, but rather as “bonded leather.”                  J.A. 47.

      With respect to the Gunin Article, DRI characterized the

statement by the LIA Laboratory director, Dr. Cory--that calling

bonded leather “leather” is deceptive--as “explicitly accus[ing]


      3
       Specifically, DRI alleged violations of the North Carolina
Unfair and Deceptive Trade Practices Act and the Washington
Consumer Protection Act, as well as several claims under both
North Carolina and Washington law: tortious interference with
business relations, civil conspiracy, negligence and fraudulent
concealment, negligent misrepresentation, breach of contract,
breach of the duty of good faith and fair dealing, and punitive
damages. J.A. 55-63.


                                             7
DRI of . . . selling a counterfeit product.”                              J.A. 50.       DRI

maintained        that   “there     could      be    no    doubt”    that    “Dr.    Cory’s

defamatory statements were referring to DRI and NextLeather®,”

J.A.       50,   and   that   the   statement         was    false   because       DRI   was

selling NextLeather® as bonded leather, rather than as leather.

       DRI also contended that Dr. Cory’s statement in the Andrews

Article--that the term “bonded leather” is deceptive as applied

to some products--was false because the FTC Guides allowed, and

Dr.    Cory      had   advised,     DRI   to       label    the   product     as    “bonded

leather.”

       Finally, DRI argued that the defendants’ statements damaged

DRI’s “actual and potential customer relationships.”                               J.A. 55.

It pointed to a decline in sales of NextLeather® to furniture

manufacturers following publication of the ad and articles, and

it asserted that it was “forced to spend substantial sums to

address [the] resulting damage.”                   J.A. 55.

       DRI moved for partial summary judgment, and Ashley and LIA

cross-moved for summary judgment.                     The district court granted

Ashley’s and LIA’s motions for summary judgment in August 2014.

Relevant here, the district court determined that DRI failed to

present sufficient evidence to establish that the Ashley Ad, the

Gunin Article, or the Andrews Article were false or misleading. 4


       4
        The district           court      also      rejected      DRI’s     arguments    in
(continued)
                                               8
      Regarding the Ashley Ad, the district court held that DRI

failed to establish that the ad was false on either of the

grounds DRI presented.       As an initial matter, DRI failed to show

that the contested statement--that “[s]ome upholstery suppliers

are using leather scraps that are mis-represented as leather”--

conveyed   the    message   that    DRI     was   selling   NextLeather®     as

leather.     See J.A. 1779–84.      The court reasoned that “a reader

of Ashley’s ad would have had to make at least two sizeable

inferences” in order to glean this message from the ad.                    J.A.

1780.    Because the ad does not use the term “bonded leather,”

“the reader would first have to ascertain that the ad references

bonded leather, as opposed to . . . any other similarly produced

products.”       J.A. 1780-81.     Second, the reader would “have to

infer that the ad was referring solely to DRI’s NextLeather®.”

J.A. 1782.     DRI also failed to establish its alternative theory

of   liability    with   respect   to   the   ad--that   the   ad   was   false

because it misled consumers--because it did not show that “a

single consumer was misled” by the ad.            J.A. 1784.

      Turning to the Gunin and Andrews Articles, the court held

that neither article contained a false statement of fact.                 As to

Dr. Cory’s statement in the Gunin Article--that referring to



support of its state law claims, granting summary judgment to
the defendants on all of them. See J.A. 1792-1807.


                                        9
bonded leather as “leather” would be “outright fraud”—-the court

pointed out that this statement was true because bonded leather

contains only scraps or shavings of leather, rather than whole

hide.       Additionally, DRI offered no “evidence linking the quote

in    the    Gunin     article        with    a    single    customer’s        refusal     to

purchase NextLeather® or general customer confusion about Dr.

Cory’s statements.”             J.A. 1774.         As for the Andrews Article, the

court held that Dr. Cory--in stating that using the term “bonded

leather”       is    “deceptive”--was          “giving      his     opinion     on   how    a

customer would perceive the term bonded leather” because he “did

not claim to know the law, did not reference the law, and did

not     maintain       that     using    such       term    would     result    in     legal

liability.”         J.A. 1777.        DRI timely appealed.



                                              II.

      We review de novo the district court’s grant of summary

judgment,       “viewing        the     facts       and     drawing    all      reasonable

inferences          therefrom      in   the       light    most     favorable    to”     the

nonmoving party.          PBM Products, LLC v. Mead Johnson & Co., 639

F.3d 111, 119 (4th Cir. 2011).                    Summary judgment is proper only

if there is no genuine issue of material fact and the moving

party is entitled to judgment as a matter of law.                            Fed. R. Civ.

P.    56(a).         “[I]t    is      ultimately      the    nonmovant’s        burden     to

persuade us that there is indeed a dispute of material fact.                               It

                                              10
must provide more than a scintilla of evidence--and not merely

conclusory allegations or speculation--upon which a jury could

properly find in its favor.”                CoreTel Va., LLC v. Verizon Va.,

LLC, 752 F.3d 364, 370 (4th Cir. 2014) (citation omitted).



                                        III.

      On    appeal,     DRI   argues   that      the   district      court   erred   in

granting      summary    judgment      to    Ashley    and     LIA    because   DRI’s

evidence with respect to the Ashley Ad, the Gunin Article, and

the       Andrews   Article      was    sufficient        to      establish     false

advertising claims under the Lanham Act, 15 U.S.C. § 1125(a). 5

In the discussion that follows, we begin with a brief overview

of the governing legal framework, and then consider each of the

purportedly false statements in turn.

                                            A.

      A plaintiff asserting a false advertising claim under the

Lanham Act must establish that:

      (1)   the  defendant  made  a  false  or misleading
      description of fact or representation of fact in a
      commercial advertisement about his own or another’s
      product; (2) the misrepresentation is material, in
      that it is likely to influence the purchasing

      5
       DRI also argues on appeal that the district court erred in
granting summary judgment to Ashley and LIA on its claim under
the North Carolina Unfair and Deceptive Trade Practices Act. We
have considered DRI’s arguments with respect to this claim and
find them to be without merit.


                                            11
     decision; (3) the misrepresentation actually deceives
     or has the tendency to deceive a substantial segment
     of its audience; (4) the defendant placed the false or
     misleading statement in interstate commerce; and (5)
     the plaintiff has been or is likely to be injured as a
     result of the misrepresentation, either by direct
     diversion of sales or by a lessening of goodwill
     associated with its products.

PBM Products, 639 F.3d at 120 (emphasis added) (quoting Scotts

Co. v. United Indus. Corp., 315 F.3d 264, 272 (4th Cir. 2002)).

Because the plaintiff must establish all five elements of the

claim, failure to establish any one element is fatal to the

claim.     The parties here focus their arguments on the first

element--whether        the   defendants            made    false     or    misleading

assertions    of    fact.      Because         we    find    that    DRI    failed    to

substantiate this element with respect to any of the contested

statements, we limit our analysis accordingly.

     For    false   advertising      liability         to   arise,    the    contested

statement must be false, and it must be a representation of

fact.     Regarding falsity, the statement “must be either false on

its face or, although literally true, likely to mislead and to

confuse     consumers     given     the    merchandising            context.”        Id.

(quoting     C.B.    Fleet    Co.     v.       SmithKline       Beecham       Consumer

Healthcare, L.P., 131 F.3d 430, 434 (4th Cir. 1997)).                       Thus, the

plaintiff can show falsity in either of these two ways.                         First,

a statement that is false on its face--or literally false--“may

be either explicit or conveyed by necessary implication when,


                                          12
considering       the   advertisement          in    its    entirety,        the       audience

would     recognize      the     claim    as       readily     as     if    it     had      been

explicitly stated.”            Id. (quoting Scotts, 315 F.3d at 274).                       “In

analyzing whether an advertisement . . . is literally false,”

courts must “determine, first, the unambiguous claims made by

the advertisement . . . , and second, whether those claims are

false.”      Scotts,     315     F.3d    at    274    (quoting      Novartis           Consumer

Health, Inc. v. Johnson & Johnson-Merck Consumer Pharm. Co., 290

F.3d 578, 586 (3d Cir. 2002)).

     Second, the plaintiff can show that, although a statement

may be true on its face and not false by necessary implication--

it is otherwise false by implication because it would likely

mislead consumers of the product the statement concerns.                                     The

plaintiff     must      support    a     theory       of    implied        falsehood        with

evidence that the advertisement “tend[s] to mislead or confuse

[such] consumers.”         Id. at 273 (quoting Johnson & Johnson Merck

Consumer Pharm. Co. v. Smithkline Beecham Corp., 960 F.2d 294,

297 (2d Cir. 1992)) (internal quotation mark omitted).                                      Such

evidence    of    consumer      confusion          must    “account    for       the    .   .   .

allegations in the case”--or, show that the statement misled

consumers in the way the plaintiff claims it did; otherwise, it

“fail[s]     to      provide      the     required          evidence        of     [implied]

falsity.”    PBM Products, 639 F.3d at 122.



                                              13
       In     addition       to    being        false,       the    statement         must      be   a

representation of fact, or, a “specific and measurable claim,

capable of being proved false or of being reasonably interpreted

as a statement of objective fact.”                            Pizza Hut, Inc. v. Papa

John’s        Int’l,      Inc.,     227     F.3d       489,         496      (5th     Cir.      2000)

(quoting Coastal Abstract Serv., Inc. v. First Am. Title Ins.

Co.,    173        F.3d   725,    731    (9th     Cir.    1999))          (internal       quotation

marks omitted).             By contrast, statements “of general opinion

[are]        not     actionable         under     [§     1125].”             Id.         To     be   a

representation of fact, the statement must “admit[] of being

adjudged true or false in a way that . . . admits of empirical

verification.”             Id. (quoting Presidio Enters. v. Warner Bros.

Distrib. Corp., 784 F.2d 674, 679 (5th Cir. 1986)) (internal

quotation          mark   omitted).            With    this        framework        in    mind,      we

discuss each purportedly false advertisement in turn.

                                                 B.

                                                 1.

        We    agree       with    the     district       court          that    DRI      failed      to

substantiate          a   claim    that    the     Ashley          Ad   is     either     literally

false or impliedly false.                  Beginning with literal falsity, DRI

argues        on     appeal       that     the        ad’s     statement--that                “[s]ome

upholstery          suppliers     are     using       leather       scraps       that     are     mis-

represented as leather,” e.g., J.A. 274--was literally false by

necessary          implication.           It     argues       that        “[s]ome        upholstery

                                                 14
suppliers” refers to suppliers of bonded leather generally and

to    DRI--as   supplying        NextLeather®--specifically,              and    that    the

ad’s audience would have recognized these references “as readily

as if [they] had been explicitly stated.”                            PBM Products, 639

F.3d at 120 (quoting Scotts, 315 F.3d at 274).                           In particular,

DRI    argues       that    the     ad’s     reference          to     NextLeather®       is

unmistakable         when   viewed      in   the    broader          context    in   which

consumers would have understood it.                       DRI then contends that,

having necessarily implied a reference to bonded leather and

DRI’s NextLeather®, the ad communicates the false messages that

bonded leather was being marketed as leather and that DRI was

marketing NextLeather® as leather.

       We find DRI’s literal falsity argument confounding.                                At

bottom, DRI asserts that, even though the ad refers only to

products      marketed      as     leather,        it     unmistakably         refers     to

products      not    marketed     as    leather,        but    as    bonded    leather    or

NextLeather®.         In order to arrive at this conclusion, one has to

follow DRI’s winding inquiry far outside the face of the ad,

which the concept of literal falsity by necessary implication

does not allow us to do.                And, one has to be willing to accept

that    the     ad     means      the    opposite         of    what     it     says,     an

interpretation we find insupportable.

       In evaluating claims asserting literal falsity by necessary

implication, courts have emphasized the limits of this theory of

                                             15
liability,     holding       that       not     “all      messages     implied      by    an

advertisement         will           support        a       finding        of      literal

falsity.”      Clorox Co. P.R. v. Proctor & Gamble Commercial Co.,

228 F.3d 24, 35 (1st Cir. 2000).                        “The greater the degree to

which a message relies upon the viewer or consumer to integrate

its components and draw the apparent conclusion, . . . the less

likely    it   is    that       a     finding      of     literal    falsity      will    be

supported.”       Id. (quoting United Indus. Corp. v. Clorox Co., 140

F.3d 1175, 1181 (8th Cir. 1998)).                   And “[c]ommercial claims that

are implicit, attenuated, or merely suggestive usually cannot

fairly be characterized as literally false.”                           Id.       In other

words, a false advertising claim cannot rely on the consumer to

draw inferences that an ad only hints at or merely suggests.

     A    false     advertising         claim      can,    however,    depend      on    the

consumer to draw conclusions that are logically necessary from

an ad’s statements.          In Castrol Inc. v. Pennzoil Co., a Pennzoil

advertisement made two claims--first, that motor oil viscosity

breakdown leads to engine failure, and second, that Pennzoil’s

product   “outperforms          any    leading      motor    oil     against     viscosity

breakdown.”       987 F.2d 939, 947 (3rd Cir. 1993).                            Though the

advertisement       did   not       “specifically         mention    its   competitors,”

the court determined that the advertisement “left the consumer

with the obvious conclusion that Pennzoil is superior to the

other leading brands in protection against engine problems,” and

                                              16
thus “Pennzoil did, by implication, compare its effectiveness

against engine wear to that of its competitors.”                                       Id. at 946.

Put    differently,        a    claim           of        literal       falsity       by    necessary

implication        could        stand           where           the     contested          conclusion

necessarily flowed from the ad’s statements.

       Although DRI acknowledges that the Ashley Ad “d[id] not

specifically use the words ‘bonded leather,’” it argues that the

ad nevertheless necessarily implied a false message regarding

bonded      leather    and      NextLeather®               because       “it     is    indisputable

. . . that the market understood [the Ashley Ad as targeting

bonded      leather].”         Appellant’s                Br.     at    31.      DRI       urges    that

consumers      would     have       understood              this       implication         given     the

broader      market    context         of       the        Ashley       Ad,     pointing      to     the

following     evidence         in    support:               (1)       another    Furniture         Today

article,     published         on    March       30,        2007--between         the       first    and

second publications of the Ashley Ad--noting that “Ashley is

urging buyers to ‘be aware’ of bonded leather,” Appellant’s Br.

at    31;   J.A.   1678;       (2)     a    survey          by        Ashley’s    expert      witness

showing that viewers of the ad understood it to refer to bonded

leather,     Appellant’s         Br.       at    32;        (3)       email   exchanges       between

Ashley and Dr. Cory suggesting that Ashley sought to disparage

bonded leather, id. at 32; J.A. 321, 332; and (4) testimony by

DRI’s owner and president and by a furniture manufacturer to the

effect that “DRI was the only company offering a product like

                                                     17
NextLeather® and marketing it as ‘bonded leather,’” Appellant’s

Br. at 32; see also J.A. 1289-90; 1496-1500.

       In   making   this   argument,    DRI    asks   us   to   reach   entirely

outside the face of the ad and into the context surrounding the

ad’s   publication     to    uncover    a     false    message   it   argues   is

necessarily implied.        Far from making the argument that the ad’s

statements logically require the conclusion that the ad concerns

bonded leather, DRI, or NextLeather®, DRI instead relies on the

consumer to scrape together that conclusion from reading other

articles from the publication and having knowledge that only DRI

was marketing a product like the one described in the ad.                   This

expectation is made all the more unreasonable given the fact

that the Ashley Ad mentions neither DRI nor its NextLeather®

product, and instead, directly refers to a category that would

exclude bonded leather and NextLeather®--products marketed with

the unqualified term “leather.”              Thus, DRI stretches the concept

of literal falsity beyond its bounds in urging us to conclude

that the ad means the opposite of what it says.                    In so doing,

DRI fails to establish that the Ashley Ad is literally false.

       Turning to implied falsity, DRI argues that, even if the

Ashley Ad is not false on its face or by necessary implication,

it is otherwise false by implication because it misled consumers

about its NextLeather® product.               For support, DRI again points

to the survey conducted by Ashley’s expert witness, maintaining

                                        18
that   it     shows    that   consumers     understood       the    ad    to   be    about

bonded       leather,      which,    “at    the      time    was    synonymous        with

NextLeather®.”         Appellant’s Br. at 40.

       But     to     “provide      the    required       evidence       of    [implied]

falsity”--that the contested statement confused consumers--the

proffered evidence must “account for the . . . allegations in

the case,” PBM Products, 639 F.3d at 122--here, that the Ashley

Ad confused consumers about NextLeather®.                         DRI fails to make

this required showing.              The survey made no mention of DRI or

NextLeather®.         Rather, it asked consumers who had attended the

Spring High Point Market between 2004 and 2013 what message they

thought the ad conveyed and to which specific suppliers they

thought the ad referred.              The survey results showed that “zero

respondents gave an answer that could be interpreted as a belief

that DRI or NextLeather were specifically mentioned as[,] . . .

[or]     implied      or    suggested      to     be[,]     the    supplier     of     the

upholstery material described” in the ad.                          J.A. 424.         Thus,

because       DRI’s     claim    depends        on   consumer       confusion        about

NextLeather®, and the survey on which DRI relies demonstrates no

confusion about DRI or its product, DRI fails to substantiate a

theory of implied falsity in the Ashley Ad.

                                           2.

       We also agree with the district court that DRI failed to

provide sufficient support for a false advertising claim with

                                           19
respect    to   Dr.      Cory’s   statement       in    the   Gunin     Article.          DRI

argues that Dr. Cory’s statement--that “[t]o call [alternative

leather products such as bonded leather] ‘leather’ is outright

deception,      outright     fraud,”       J.A.    86--is        literally     false       by

necessary implication.            DRI contends that the statement must be

understood as “referring specifically to NextLeather®” because,

in the same article, Dr. Cory described the characteristics of

bonded leather, and that description “applies to NextLeather®.”

Appellant’s Br. at 45.               Thus, DRI maintains, “any reasonable

juror would conclude that [Dr.] Cory was calling DRI’s use of

the     term    ‘bonded       leather’--not            ‘leather’--‘deceptive              and

fraudulent.’”        Id.

      However, the statement that calling bonded leather products

“leather”      is   deceptive     unambiguously          communicates       the    message

that using the unqualified term “leather” for products that are

not   leather       is   misleading.         Nothing       on     the   face      of     this

statement suggests that the use of the term “bonded leather”--by

DRI or anyone else--is misleading.                      And DRI acknowledges that

its     NextLeather®       product    is    not        leather    as    that      term     is

understood in the furniture upholstery industry, but is instead

a     “synthetic         leather-look       furniture            covering      product.”

Appellant’s Br. at 8.             Therefore, we agree with the district

court    that   Dr.      Cory’s   statement       cannot      qualify    as    false       or

misleading because it is true, and accordingly conclude that DRI

                                           20
has failed to support its false advertising claim with respect

to the Gunin Article.

                                         3.

       Finally, we agree with the district court that DRI failed

to provide sufficient evidence to demonstrate that Dr. Cory’s

statement    in   the    Andrews    Article    was   a    false    or   misleading

representation     of    fact.      As    discussed       above,   this    article

advocated against use of the term “bonded leather” as “bound to

confuse consumers,” and it quoted Dr. Cory as saying that the

term   “is   deceptive    because    it   does    not    represent      [the]   true

nature” of the products it is used to describe.                          J.A. 108.

Instead, such products are more accurately described as “vinyl,”

“polyurethane laminate,” or “composite,” rather than with a term

that includes the word “leather.”             J.A. 108.

       The district court concluded that this statement expressed

an opinion “on how a customer would perceive the term bonded

leather.”     J.A. 1777.         DRI argues that, even if Dr. Cory’s

statement conveys an opinion, it is still actionable under the

reasoning of Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990).

In that case, the Supreme Court held that opinion statements are

not automatically protected against defamation claims because,

for example, the statement, “‘In my opinion Jones is a liar,’ .

. . implies a knowledge of facts which lead to the conclusion

that Jones told an untruth.”              Id. at 18.        The Court reasoned

                                         21
that “[i]t would be destructive of the law of libel if a writer

could escape liability for accusations of [defamatory conduct]

simply      by     using,       explicitly     or    implicitly,       the     words     ‘I

think.’”         Id. at 19 (quoting Cianci v. N.Y. Times Pub. Co., 639

F.2d 54, 64 (2d Cir. 1980)).

     If we were to extrapolate the Milkovich rule to the Lanham

Act context, we could draw from it that statements of opinion

may not automatically be protected from false advertising claims

if   they        “imply     a    knowledge     of    facts     which    lead     to     the

conclusion” that the statement were true.                      Id. at 18.        By this

reasoning, DRI’s argument is unpersuasive, however, because Dr.

Cory’s statement does not imply a basis in facts leading to the

conclusion that consumers are or have been deceived by the term

“bonded leather.”               It communicates only the hypothesis--yet to

be proved or disproved--that “bonded leather” has the potential

to confuse consumers.

     More         pertinent       to    our    analysis        than    the     Milkovich

defamation        rule    are      decisions       rendered    in     the    Lanham    Act

context, which, as discussed above, have held that statements

“of general opinion [are] not actionable under [§ 1125].”                             Pizza

Hut, 227 F.3d at 496.                  Rather, an actionable statement must

“admit of being adjudged true or false in a way that . . .

admits of empirical verification.”                  Id.   An example of a type of

statement        not     “admit[ting]     of       empirical    verification”          that

                                              22
courts have recognized is “[a] prediction, or statement about

the future, [which] is essentially an expression of opinion”

that is not actionable.       Presidio, 784 F.2d at 680; see also id.

at 678-79.

      In the context of an article suggesting that a marketing

term is “bound to confuse” consumers, stating that the term is

“deceptive”    is    merely   putting       that   point    a    different        way.

Unlike   stating     that   the   term      “has   been    shown     to    deceive”

consumers,          which     might           “admit[]          of         empirical

verification,” Pizza Hut, 227 F.3d 496, merely calling a term

“deceptive” suggests only that it is the speaker’s view that the

term has the potential to deceive.             In other words, a prediction

about a term’s power to deceive expresses only an opinion about

the   term’s     likely     effect     on     consumers;        it    is     not     a

representation      of   fact--false     or   otherwise--and         is    thus    not

actionable under the Lanham Act.                See Presidio, 784 F.2d at

680; Pizza Hut, 227 F.3d 496.          Therefore, DRI has also failed to

substantiate its claim as to Dr. Cory’s statement in the Andrews

Article.



                                       IV.

      For the foregoing reasons, the judgment of the district

court is

                                                                           AFFIRMED.

                                       23
