1104.03(b) The "Blackout Period"
Under 37 C.F.R. §2.76(a), an applicant may not file an amendment to allege use under 15 U.S.C. §1051(c) after the date that the application is approved for publication by the examining attorney. Under 37 C.F.R. §2.88(a), an applicant may not file a statement of use under 15 U.S.C. §1051(d) before the date of issuance of the notice of allowance. These two rules combine to create a period of time when neither an amendment to allege use nor a statement of use may be filed. This period is known as the "blackout period." Any statement of use or amendment to allege use filed during this period will be deemed untimely and the fee will be refunded. In re Sovran Financial Corp., 25 USPQ2d 1537 (Comm’r Pats. 1991). See TMEP §1104.03(c) regarding processing amendments to allege use filed during the blackout period.
Intent-to-use applicants under 15 U.S.C. §1051(b) are encouraged to check the TSDR database on the USPTO website at http://tsdr.uspto.gov/ to determine the status of the application before filing an amendment to allege use.
If a review of the prosecution history of the application shows that the application has been approved for publication and a notice of allowance has not issued or was cancelled, the blackout period is in effect and an amendment to allege use may not be filed.