Popping In-N-Out: A Guerrilla TM Strategy Down Under

ByMarkport

Every couple of years, the famed California IN-N-OUT BURGER pops up in Sydney or Melbourne. This means long lines, limited menus, and plenty of social media hype… then they pack up and leave.

What most people don’t realise is that these pop-ups aren’t just for publicity. It’s part of a broader intellectual property management strategy to maintain IN-N-OUT’s trademark rights in Australia by showing just enough local use to prevent a non-use removal.

Under Australian trade mark law, a registered mark may be removed if it hasn’t been used for over three years. But even minimal use, like a one-day pop-up, can be enough to defend the registration from such a removal. It might feel like a frustrating tease to consumers, but from an IP manager’s perspective, it’s genius.

How IN-N-OUT Protects Its Brand with Minimal Presence

A little use goes a long way

IN-N-OUT isn’t investing in full operations in Australia. But that doesn’t mean it’s doing nothing. Each pop-up event counts as a commercial use of the brand. It resets the non-use clock and sends a clear message: “We’re are still around.”

The courts have confirmed this principle. As noted in Woolly Bull Enterprises Pty Ltd v Reynolds [2001] FCA 261, “a single bona fide use of the mark during the relevant three-year period is, by force of section 100(3)(a), an answer to an application for removal for non-use” (link to full case). In other words, even one genuine instance of use can be enough to keep the trademark alive.

It’s more than just publicity

These pop-ups generate media buzz and social engagement, helping IN-N-OUT maintain visibility and brand recognition in Australia. This local reputation strengthens their legal position if they ever need to challenge unauthorised use of the brand and preserves their rights should they decide to establish a permanent presence in the future.

It’s a legal strategy, not a coincidence

Non-use removal is a genuine risk for any trade mark owner not actively doing business in Australia. IN-N-OUT’s pop-ups aren’t random; they are carefully timed and serve a clear legal purpose. This approach shows how global brands can use limited, targeted activity to maintain protection in overseas markets without committing to full-scale operations. We discussed a similar risk in the Burger King and Hungry Jack’s case, which remains a cautionary tale for trade mark owners who delay entering the market.

What This Means for Small Businesses and Brand Owners

Trademark protection in Australia does not require constant or large-scale use. Strategic, timely use backed by documentation publicity is enough. For small businesses and startups planning to expand, this is a useful tactic.

So, if entering a new market for the first time, consider:

  • Registering your trade mark early
  • Using the mark in small but commercially genuine ways
  • Keeping clear records (e.g. photos, receipts, marketing materials)

Pop-ups, online sales, collaborations, or limited product runs can all count, as long as they’re genuine and clearly tied to your trade mark.

Could Someone Else Register the Name? Not Likely.

Some argue that IN-N-OUT’s pop-ups fall short of genuine use. A recent Techdirt article called it “trade mark tourism,” suggesting these events are more about keeping legal control than building a business in Australia.

That criticism isn’t without merit. One could reasonably argue that such minimal use should not qualify as genuine. However, the law as it stands only requires one bona fide use within the relevant period, and IN-N-OUT has done just enough to meet that threshold.

As a thought experiment, even if someone were successful in having the trademark removed for non-use, that would not give them on opening to register the name themselves. Australian trade mark law blocks applications made in bad faith, especially where the applicant is clearly aware of the brand’s international reputation. It also allows refusals where use of the mark would mislead consumers or cause confusion with an existing brand, even one with a limited or niche following in Australia.

Beyond trade mark law, IN-N-OUT could also rely on protections under the Australian Consumer Law and common law passing off. These laws work together to protect brands with a foothold in the market, however small.

What You Can Do to Protect Your Brand

If you want to safeguard your business name or logo, don’t wait until it’s too late. Learn from strategies like IN-N-OUT’s, but apply them practically to your own situation. You don’t need a big budget. You just need a good plan.

At Markport®, we help small businesses and startups across Australia:

  • Register and secure trade marks
  • Develop brand use strategies to keep your rights strong
  • Design brand identities with protection in mind
  • Respond to threats or copycats using your brand

Whether you’re active in the market or just starting out, we’ll help you keep your trademark working for you.

🔗 Reach out today and start protecting your brand:
https://markport.com.au/contact-us/