Legal Definitions - blackout period

A blackout period in trademark law refers to a specific interval during the application process for a trademark, particularly for applications based on an intent to use the mark in the future. This period begins once the U.S. Patent and Trademark Office (USPTO) has reviewed an "intent-to-use" trademark application and approved it for public announcement. It continues until the USPTO officially issues a "notice of allowance," which signifies that the mark has passed the public review phase and is ready for registration once actual use begins.

During this blackout period, the applicant is temporarily restricted from making significant changes to their application or formally declaring that they have started using the trademark. This pause ensures stability while the public has an opportunity to object to the trademark's registration before it moves closer to final approval.

Here are some examples to illustrate how a blackout period applies:

• Scenario: Tech Startup Launch
  A new tech startup, "InnovateApp LLC," files an intent-to-use trademark application for its upcoming mobile application's name, Synapse. The U.S. Patent and Trademark Office (USPTO) reviews the application and approves it for publication, signaling the start of a blackout period. During this time, even if InnovateApp LLC decides to significantly alter the app's logo design or description of services, they cannot submit that amendment. Furthermore, if they manage to launch Synapse earlier than expected and begin using the trademark in commerce, they are still prohibited from filing the required "statement of use" (proof of actual use) until the blackout period concludes with the issuance of a notice of allowance.

  This illustrates the blackout period by showing how InnovateApp LLC is restricted from making substantive changes to their application (like altering the logo or service description) and from filing the formal declaration of use, even if their business plans change or accelerate.

• Scenario: Beverage Company Expansion
  A beverage company, "QuenchCo," applies for an intent-to-use trademark for a new energy drink flavor, VigorBlast. After the USPTO approves the application for publication, the blackout period begins. While this period is active, QuenchCo discovers a competitor has a similar product name, prompting them to consider changing VigorBlast to PowerSurge. However, they cannot make this substantive change to their trademark application during the blackout period. They must wait until the notice of allowance is issued before they can attempt to amend the name or take other actions, even if they have already started test marketing VigorBlast and could otherwise file a statement of use.

  This example demonstrates the blackout period's restriction on making substantive amendments to the trademark application, such as changing the actual mark itself. It also highlights the inability to file a statement of use even if the product is already being used in the market.