Pepsi Can’t Get Out of Suit Over 2016 Super Bowl Ad
In July 2016, Betty Inc, a boutique advertising agency filed a complaint for copyright infringement, breach of contract, unjust enrichment, conversion, and unfair competition against soft drink giant PepsiCo. In November of 2016, Pepsi was granted their motion to dismiss the complaint. However, this motion did not dismiss Betty Inc.’s copyright infringement claim and allowed the agency to amend their contract claim.
Now, on June 5, 2018, Pepsi has lost their bid to dismiss the complaint after Judge Vincent L. Briccetti ruled that Pepsi needed to negotiate with Betty Inc. before using the disputed advertisement. This is the latest saga in this longstanding dispute. The dispute came out of Pepsi’s 2016 Super Bowl halftime commercial that featured artist Janelle Monảe. Betty Inc. believes that the ad was “fundamentally based” on an idea of the boutique agency that they had previously pitched to Pepsi.
Betty Inc. and Pepsi signed an agreement in 2014, which Betty Inc. believes obligated Pepsi to negotiate in good faith. Betty Inc. believes Pepsi failed to do so when they used an idea extremely similar to Betty Inc.’s idea and had another agency produce the idea. Betty Inc. pitched the idea originally in October 2015, after signing the nonexclusive agreement in 2014 that allowed Betty Inc. to engage in marketing services for Pepsi. Betty Inc. claims they pitched an idea that was called “Living Jukebox” that featured an artist moving in and out of rooms with different outfits and dance styles. Betty Inc. alleges that Pepsi liked their idea during the meeting, but then let Betty Inc. know they were not going to use the idea. Subsequently, Pepsi’s 2016 ad featuring Monảe had her moving in and out of different rooms with different outfits and dance styles.
Judge Briccetti stated in the court order that Betty Inc. was able to show that their 2014 contract imposed obligations on Betty Inc. such as nondisclosure agreements and the scope of their work relationship. Additionally, the order said that Betty Inc.’s allegations support their claims that “Pepsi failed to negotiate at all for the use of Betty’s marketing communication services.”