My business partner just finished building his deck. In addition to the bureaucratic ordeal, that is obtaining permitting, he decided to go the extra frustrating mile and install composite deck boards versus treated wood. Fair enough. There was just one little wrinkle: Normal deck screws will "mushroom" on you unless they are pre-drilled, or worse, split the board entirely. If you’re not careful, you can go through a few boards before you figure it out. And the boards are (not surprisingly) much more expensive.

To solve the problem, builders are instructed to use special screws.SplitStop™ screws seem to be the preferred choice – they have the patents (5,516,248, 5199,839, if you’re curious) – although others "claim" to work just as well. A simple Google search returns no less than 10 competing brands, all making a seemingly fair case that their screw is the right screw for the job. But none of them have the SplitStop patent, and numerous articles by independent reviewers bemoan the confusion in the marketplace.

In addition to the "patent" confusion, throw in a dose of "trademark" confusion, and you have a veritable IP mess. Titan Metal Werks (who owns the SplitStop name and patents) also markets the DeckEase™ product. Compare that to TrapEase™ (marketed by competitor FastenMaster).

And therein lies the question: What is Titan to do? Are the others infringing? Perhaps. Are they causing confusion in the market? Certainly. Is the confusion hurting the reputation of the Titan brands? Probably. Will Titan be able to get them to stop? Doubtful.

At first, its tempting to think Titan has a legal problem (and they very well might), and to come up with legal remedies (which they could), but that’s really not the central issue. The issue with the Titan brand portfolio is really a failure of marketing strategy. Specifically, a three-part failure:

1. Underfunded brand development effort: A properly promoted brand would be able to garner market share fast enough to create a stranglehold in the marketplace, locking competitors into a minority share and decidedly sub-dominant position. Instead, Titan’s effort resembles many other industrial products: Tech-heavy, blah, and amateurish. If you want to play in the consumer big leagues, you need to bring the big bats.

2. Failing to employ the "Kleenex®" brand strategy: With a patented product on an early/first-to-market product, Titan could have (and should have) adopted the king-of-the-hill brand position, naming its product directly after its function – composite deck fastening. Instead, the company employed a strategy focusing on the key benefit (stopping "splits"). That’s nice, but consumers were just getting used to composite decking in the first place; they understood the overall benefits of the end product, but were not nearly sophisticated enough to understand the specific cost/benefit on the screws themselves. Frankly, who cares? It’s a screw. 

Customer: "Which screw do I need?"

Hardware Store Clerk: "You need "CompScrew" screws for composite decking (throwing out a concept idea here). 

Customer: "CompScrew for composite decking. That makes sense. Okay, I’ll buy those." 

Done. Instead, Titan is asking consumers to understand the finer points of installation procedures in order to understand (and find value in) the brand benefit. Good luck with that.

3. Weak channel marketing: The fact you can easily buy another brand of screw at all is a failure of channel marketing. Smart channel marketers would have approached the makers of the composite decking materials themselves, proved the fastening product’s efficacy, and worked with them to actually write in the proper installation practices into the warranty itself. In other words, if you don’t fasten the boards properly (with this specific brand of screw), we won’t guarantee the product. Of course, you can’t out and out "say" it has to be a specific brand, but you can make a case in your warranty for a specific claim in the patent. Would it hold up in a small claims court? Perhaps not, but it would be enough to scare off most buyers from going a different direction (especially if you offered a good incentive or rebate).

It really comes down to this: A solid IP portfolio is an important first step to building a brand. But it is only the beginning. If you fail to market it properly, your IP can’t save you.

Jason Voiovich, Principal and Co-Founder of Ecra Creative Group and Author of the State of the Brand weekly column

  • Jason, great post! It actually reinforces the premise of DuetsBlog by illustrating the importance of more graceful and early collaborations between legal and marketing types.

  • I’m not into drilling, but very interesting article.

  • Excellent article! I feel that sharing this article with one’s marketing client groups would demonstrate humility and business sense on the part of Legal – especially since Mr. Voiovich’s website seems to suggest that he’s a marketing professional and not a lawyer. In any case, sharing this could support a healthy conversation and relationship building between IP counsel and marketing.

  • Wow, this is a really smart post on several levels. The part about channel marketing is something I never would have expected to see.

  • As a consumer, I’d prefer if they should just bundle the screws with the composite. Buy 10 boards, get a box of the “right” screws. Make it a rebate if you want. This stuff is so obvious to Titan, but so murky to the end consumer.

  • In this case I think it is a failure of the marketing strategy. The channel strategy as well as the communication, more specifically naming without descriptor and lack of brand awareness building effort led to this problem. Patents, trademarks etc will help you prevent competition from using your name or similar name to yours but the main audience is the users or end customer. He has to be able to differentiate your brand vis a vis competition. If there is confusion between your brand and the competition then it clearly means that either the brand has not been marketed well. Either it is not advertised enough or the channel partners are not working as members. A proper channel maangement strategy has to be in place to ensure support from channel members to be able to gain sufficient push from their end for products that are dependent to be sold via them.
    In addition advertising should also be at such a threshold that the end consumer is able to differnetiate your Brand vis a vis competition very clearly.
    A good push plus pull strategy together would have been able to help this screw maker.
    If the damage is not already done in terms of trademark loss then I feel that highlighting the name and an adequate descriptor line, endorsements, slice of life adverts as well as testimonials from channel members might help them achieve their objectives. Further an appropriate program to gain support of channel members, involve them with the organization instead of just giving incentives will be able to get them on board.
    There is no rocket science to it, just some adjustments and improvements that would help fix the problem for the longer term. It will not happen overnight as the efforts will take time to sink it and take effect if not too late already.

  • Stephen – Thanks for posting this good article. It highlights problems caused by taking products to market without solid teamwork between marketers and IP lawyers. Both have important roles to play in any successful marketing strategy.
    Please say hello to David Pearson for me. We worked together on the successful defense of a company in a patent infringement lawsuit. He is a very good litigator and fantastic local counsel.

  • Tony

    it seems clear to me that FastenMaster has great sales team…. great article though