Over the holidays, I enjoyed watching Pepsi, Where's My Jet?, the Netflix four-episode documentary about
Brief Background
The Pepsi Stuff promotion allowed consumers to collect "Pepsi Points" that could be redeemed for Pepsi merchandise. Pepsi ran a commercial in conjunction with the promotion that featured a teenager going about his morning routine with various Pepsi merchandise and the corresponding
Four Thoughts
1) Humor in advertisements shouldn't give rise to liability.
First, Pepsi Where's My Jet serves as a reminder that obvious humor in advertisements is not an actual offer. The court opinion quotes Corbin on Contracts' statement that an offer "must be an expression of will or intention," and as a result, an offer does not include "acts evidently done in jest or without intent to create legal relations."
I remember the commercial, and I remember thinking the Harrier jet at the end was funny. The notion of a teenager (or of any individual for that matter) owning a fighter jet, which according to the court opinion cost roughly
2) That said, disclaimers and terms and conditions help.
While Pepsi ultimately prevailed in the litigation, a disclaimer in the commercial would have gone a long way toward avoiding a dispute in the first place. The series' interviews with Leonard's financial backer and legal team indicate that, while there was some internal debate regarding the validity of Leonard's claim, the lack of a disclaimer on the ad was a major reason they were willing to pursue it.
3) Some consumers will take unreasonable views on things.
Leonard's attempt to claim the Harrier jet brought to mind other litigation involving consumers with an unreasonable view of corporate marketing. For example, the people who filed a putative class action against
More recently, someone sued the maker of Diet Dr. Pepper, claiming that the use of the word "diet" in the product name was misleading because it suggested that the drink promised weight loss or weight management even though it contains aspartame, which has been shown to cause weight gain. Becerra v.
There have also been several suits claiming that labeling for ice-cream bars dipped in chocolate was misleading because the chocolate coating contains vegetable or coconut oil, such as Puri v.
4) The district court judge receives some unfair treatment.
The last episode in the series discusses in general terms the court's opinion that granted summary judgment to Pepsi. Expressing some sour grapes, the members of Leonard's team call District Judge
But the Second Circuit affirmed
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