GarnerWhatsinYourWalletLast year, in my post entitled What’s in Your Wallet, a Cafe?, I had this to say about the iconic Capital One tagline:

“Since 2000, Capital One Financial — the nation’s largest direct bank — has been promoting its credit card services by asking What’s in Your Wallet? Three years later it began promoting banking and other financial services using the same iconic tagline, slogan, and question. By 2011, it had achieved so much traction that What’s in Your Wallet? was inducted into the Advertising Walk of Fame as one of the 16 Greatest Slogans in History.”

It seems as though, whenever a brand owner comes up with a truly inventive tagline or slogan, it is almost predictable and inevitable there will be others who follow along, looking for a short cut, those willing to take a free ride on the underlying creative branding concept.

For example, when the Got Milk? campaign came along and enjoyed the vast success it did for so many years, even years later, it has almost become cliche for others to replace milk for whatever they happen to be selling, while using the remainder of the inventive branding concept:

gitmilklogoSo, there was Got Wine? Got Water? And, there was and is a multitude more Got [Whatever]? marks, far too many to prevent or stop, I’m sure, but what about setting some realistic scope to the rights and drawing some reasonable trademark lines in the sand?

For example, when Otis Spunkmeyer registered Got Cookies? as a trademark for cookies, it never apparently thought twice about the relatedness and complementary nature of cookies to milk, and the California Milk Processor Board surprisingly never objected. Instead, it simply registered its Got Milk? slogan for the very same goods and now coexists.

Putting legality aside for a moment, is one sign of a successful tagline the spawning of others that copy the underlying creative concept and adapt it to their particular business?

Perhaps. Following Capital One’s introduction of What’s in Your Wallet? came What’s in Your Tortilla?, followed by What’s in Your Bowl?, and then What’s in Your Bag?, What’s in Your Backpack?, What’s in Your Cup?, What’s in Your Garage?, What’s in Your Attic?, What’s in Your Toolbox?, What’s in Your Water?, What’s in Your Beef?, What’s in Your Purse?, and What’s in Your Jacket?, among a multitude of others.

It’s fascinating to me that as much as Capital One must spend on its ad budget, and celebrity endorsements (Jennifer Garner and Samuel Jackson), it appears to view its trademark rights as razor thin, as it is almost completely absent from any TTAB enforcement activities, at least as a plaintiff, with none involving the What’s in Your Wallet? tagline and trademark, except this extension of time to oppose What’s in Your Jewelry Box?, but is now registered, for “providing monetary exchange services, namely, exchanging precious metals of others for money,” and this extension of time to oppose registration of What’s in Your Vacation? for “customer loyalty reward program featuring the accumulation of points by the program members and the subsequent redemption of points towards gifts and discounts in air travel, hotel lodging, restaurants, home appliances, and other services and products.”

So, no surprise now that Capital One has taken no apparent action against Rosland Capital’s trademark registration for the tagline What’s in Your Safe? for “telephone ordering services in the field of precious metal ingots and numismatic coins” — the first registration it obtained was not stated in the form of a question (What’s in Your Safe) for “retail store services featuring precious metal ingots and numismatic coins; on-line retail store services featuring precious metal ingots and numismatic coins; retail catalog ordering services via telephone featuring precious metal ingots and numismatic coins.” Capital One didn’t even put in an extension of time to oppose either of those or What’s in Your Pocket? for a credit card holder, leaving me to wonder will any mark other than an identical one get Capital One’s serious attention?

Apparently not, given this one (pun intended): What’s Not in Your Wallet? for “on-line retail store services featuring clothing, gifts and videos.”

Of course, this is not what I expected to find when a Rosland Capital commercial caught my eye this weekend and prompted me to dig for some trademark and blogging gold ingots. I didn’t realize when I heard celebrity William Devane ask What’s in Your Safe? at the end of a Rosland Capital commercial (in a way that reminded me of the nearly identical final question Jennifer Garner keeps asking in her Capital One commercials), I had no idea that the creativity in the concept of the Capital One tagline was like the cow already out of the barn, down the road, and far away from the dairy farm.

Speaking of cows, why did Chick-fil-A think it could stop Bo Muller-Moore’s Eat More Kale? based upon its rights in the distinctive, but very different, Eat Mor Chikin campaign and mark?

Back to Capital One, for our creative types out there, what is the rationale for doing nothing about the multitude of taglines that What’s in Your Wallet? has spawned, especially those in the financial services field and those for complementary products?

Trademark types, do these recent Capital One intent-to-use filings (What’s in Your Tablet? What’s in Your Phone? What in Your Pocket? What’s in Your Digital Wallet? What’s in Your Smart Wallet? signal the possibility of enforcing the tagline rights more broadly?

  • James Mahoney

    I’m not sure why Capital One wouldn’t object to finance-related taglines, and obviously I don’t know why they let all the others slide. But an old study possibly factored into the decision not to oppose the tags, which I see as a marketing decision as much as a legal one.

    Back in the mist of time (the ’60s or ’70s), the study looked at advertising that promoted a generic category rather than being memorably tied to a specific product or company. The example given was soup. It found that an ad focused on a generic quality of soup itself rather than Brand A Soup benefited the industry leader at least as much, and often more, than Brand A.

    For example, people seeing an ad showing a steaming bowl of soup under the headline/voiceover “Baby, It’s Cold Outside. Chase the Chill with a Nice Bowl of Hot Soup” invariably thought of Campbell’s soup, even when the ad was tagged with Brand A and mentioned it in the headline.

    The suggestion was that the message gets truncated to “cold weather; hot soup” in the shoppers’ minds, and they reach for the familiar on the shelf. The lesson was that if you’re not the category leader (or very close to it), then don’t spend your ad money promoting the category, since you’re just as likely to reinforce awareness of the leader.

    The milk tagline offers a comparable illustration: Have you ever seen a “Got [Something]?” tagline and not instinctively thought of milk?

    Similarly, Capital One’s tagline is so well-embedded that I think when people see a non-finance derivative, most would automatically think at least “Visa,” if not specifically Capital One. So, at some level, every piggyback “What’s in…” tagline benefits Capital One. Arguably, even the finance-related ones would do that, whether or not they’re promoting a product or service that Capital One actually offers.

    It’s the tagline equivalent of going viral.

    • stevebaird

      James, your insights are really valuable, thanks for sharing this important perspective. Putting truly famous taglines aside, a friendly amendment from a trademark type might be to draw a line around financial services, because the modest benefit of the silent reinforcement of piggybacking in the financial services field (in contrast to the more robust reinforcement benefit in totally non-related fields of use) is likely outweighed by the shrinking of rights and commercial space if nothing is done to avoid a likelihood of confusion in response. The commercial space part is important and often forgotten, it is a key aspect of giving a brand owner the ability to freely expand its offerings under the same tagline or brand. Here, Capital One has gradually expanded its offerings over time, where they will end may be unclear, but if financial services of others are allowed to be provided with piggyback marks and taglines, it raises a serious question about whether Capital One could expand into those other financial service offerings in the future after another has established rights in a highly similar mark or tagline.

      • James Mahoney

        I think this is a good, if hypothetical, example of how legal and marketing can work together to strike a cost/benefit balance in the sense of trademark ownership and future options. Each side contributes discipline-specific understanding and insight that will help the company get the most benefit at acceptable risk to future options.

        The not-so-incidental side benefit is greater understanding and knowledge of each others’ concerns for both marketing and legal. That makes everyone’s life a little easier by reducing red flags on the way to approval.

        Back to your Capital One example, though, I wonder who inside the company participated in the discussions of whether to challenge those piggy-backs? Specifically, it’d be interesting to learn if legal made the decision on its own, or if other departments such as marketing consulted on the decision.

        • stevebaird

          Love the collaboration, thanks James! Hopefully our discussion will continue to spread the benefits of having this mindset, to organizations that might not otherwise as freely collaborate in determining a meaningful and reasonable scope of protection and then knowing what follows when enforcement targets emerge without having to recreate the wheel each time on an ad hoc basis.

  • cfioren317

    I actually looked up on the internet whether RoslandCapital was the same company as Capital One as soon as I heard Devane say “What’s in your safe” thinking there was no way they could get away with that…amazing to me Capital One wouldn’t fight this even a little bit.

  • investnyou

    I can’t find myself to come to any agreement that a registration like what’s in your wallet ( banking and credit cards ) could have any effect on owners of say.. what’s in your drinking water? or.. what’s in your tub? What’s in your phone?
    Such an enforcement would negate the concept of trademark categories.