Inspired by this commercial, plaintiff set out to obtain a Harrier Jet. The military drumroll sounds a final time, as the following words appear: 'HARRIER FIGHTER 7,000,000 PEPSI POINTS.' A few seconds later, the following appears in more stylized script: 'Drink Pepsi - Get Stuff.' With that message, the music and the commercial end with a triumphant flourish. at 3,) the teenager exclaims, 'Sure beats the bus,' and chortles. The teenager opens the cockpit of the fighter and can be seen, helmetless, holding a Pepsi. While the faculty member is being deprived of his dignity, the voiceover announces: 'Now the more Pepsi you drink, the more great stuff you're gonna get.' 14 Several students run for cover, and the velocity of the wind strips one hapless faculty member down to his underwear. Finally, the Harrier Jet swings into view and lands by the side of the school building, next to a bicycle rack. The Harrier Jet is not yet visible, but the observer senses the presence of a mighty plane as the extreme winds generated by its flight create a paper maelstrom in a classroom devoted to an otherwise dull physics lesson. The three boys gaze in awe at an object rushing overhead, as the military march builds to a crescendo. The boy in the middle is intent on his Pepsi Stuff Catalog, while the boys on either side are each drinking Pepsi. The scene then shifts to three young boys sitting in front of a high school building. ( See Defendant's Local Rule 56.1 Stat., Exh.

The drumroll then accompanies the subtitle 'SHADES 175 PEPSI POINTS.' A voiceover then intones, 'Introducing the new Pepsi Stuff catalog,' as the camera focuses on the cover of the catalog. The teenager opens the door of his house and, unfazed by the glare of the early morning sunshine, puts on a pair of sunglasses. The drumroll sounds again, as the subtitle 'LEATHER JACKET 1450 PEPSI POINTS' appears. Bursting from his room, the teenager strides down the hallway wearing a leather jacket.

While the teenager confidently preens, the military drumroll again sounds as the subtitle 'T-SHIRT 75 PEPSI POINTS' scrolls across the screen. As the newspaper hits the stoop of a conventional two-story house, the tattoo of a military drum introduces the subtitle, 'MONDAY 7:58 AM.' The stirring strains of a martial air mark the appearance of a well-coiffed teenager preparing to leave for school, dressed in a shirt emblazoned with the Pepsi logo, a red-white-and-blue ball. The commercial opens upon an idyllic, suburban morning, where the chirping of birds in sun-dappled trees welcomes a paperboy on his morning route. The Alleged Offer 12Д«ecause whether the television commercial constituted an offer is the central question in this case, the Court will describe the commercial in detail. В¶ 22) that he contends constituted an offer of a Harrier Jet. В¶ 3.) While living in Seattle, plaintiff saw the Pepsi Stuff commercial ( see id. В¶ 7.) Plaintiff is a resident of Seattle, Washington. В¶В¶ 5-6.) A Pepsi Stuff catalog was distributed to consumers in the test market, including Washington State. В¶В¶ 4, 8.) Before introducing the promotion nationally, defendant conducted a test of the promotion in the Pacific Northwest from October 1995 to March 1996. Stat.') В¶ 2.) The promotion, entitled 'Pepsi Stuff,' encouraged consumers to collect 'Pepsi Points' from specially marked packages of Pepsi or Diet Pepsi and redeem these points for merchandise featuring the Pepsi logo. ( See PepsiCo Inc.'s Rule 56.1 Statement ('Def. This case arises out of a promotional campaign conducted by defendant, the producer and distributor of the soft drinks Pepsi and Diet Pepsi. For the reasons stated below, defendant's motion is granted. Defendant has moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. Plaintiff brought this action seeking, among other things, specific performance of an alleged offer of a Harrier Jet, featured in a television advertisement for defendant's 'Pepsi Stuff' promotion.

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