The original line up of War (circa 1969) via Wikipedia

*Members of the original funk/rock band War is going after PepsiCo in court claiming the soft drink maker used their song “why Can’t We be Friends” in a new commercial without their approval.

Even if PepsiCo and its agencies got rights from the music’s publishers or anyone else who owns the work, attorney Ken Freundlich and his co-counsel Max Sprecher said the company should have negotiated with the artists as well, reports the Associated Press.

In the $10 million lawsuit filed Wednesday in Los Angeles, some of the group’s original members and a relative said they learned the 1975 hit was in the ad for Pepsi MAX only when the commercials launched in July. [Watch commercial below.]

PepsiCo said in a statement it believes the lawsuit has no merit.

“Pepsi has a long history of partnering with iconic celebrities and musicians and we value our relationship with the music and entertainment industry,” the company, based in Purchase, N.Y., said in a statement Thursday.

The ad is part of a campaign promoting the no-calorie Pepsi MAX. The spot with “Why Can’t We Be Friends” is a remake of the company’s “Diner” Super Bowl commercial from 1995, but this time Pepsi MAX is pitted against Coca-Cola’s popular Coke Zero.

In the original commercial, one of the most memorable from Super Bowl XXIX, delivery drivers from the rival soft drink makers form a short-lived friendship in a diner over music. Backed by the song “Get Together” from The Youngbloods in 1995, and War’s hit in this year’s ad, the drivers sample each other’s drinks and the Coca-Cola driver prefers the Pepsi product. In both ads, the friendship comes to an abrupt end.

But the War members apparently weren’t amused. They have asked for a jury trial and “confiscation of unlawful profits” in amount to be determined.

Original members listed in the lawsuit are Harold Brown, Lee Oskar Levitin, Howard Scott, and Morris Dickerson. Laurian Miller, daughter of Charles Miller, is also a plaintiff.

“Pepsi is selling its billion-dollar brand based on their voices and they have to pay for it,” Freundlich said.

Watch both the 1995 and 2010 versions of the Pepsi ad below.

For more on the history of War, see their Wikipedia entry HERE.