USPTO Fails to Prove Section 2(a) False Connection of ENAIRA with the Central Bank of Nigeria

Despite the applicant's "egregious conduct" during prosecution of its application and during this appeal, the Board was "duty-bound" to decide this case "solely on the record and the applicable law," and so it reversed the USPTO's Section 2(a) refusal to register the mark ENAIRA on the Supplemental Register, for “Financial services, namely, providing a virtual currency for use by members of an on-line community via a global computer network." The Office had maintained that the mark falsely suggests a connection with the Central Bank of Nigeria. In re Mefona LLC, Serial No. 97065669 (May 14, 2025) [not precedential] (Opinion by Judge Christopher C. Larkin).

Applicant Mefona LLC, appearing pro se, "made numerous unfounded and offensive accusations of unethical and even illegal conduct by the Examining Attorney, officials of the United States Patent and Trademark Office," and the Board; "unnecessarily inflated the record, and complicated and prolonged the ultimate disposition of this case;" and "caused the Board and other offices in the USPTO to waste their limited resources on multiple matters not germane to the merits of this case." The Board needed 10 pages of this 24-page opinion to describe the contentious prosecution history of the subject application.

The Office initially refused registration on the ground that the mark is merely descriptive because the "Naira" is Nigeria’s currency and "eNaira" is the name given to Nigerian currency in electronic form. Mifona then amended the application to seek registration on the Supplemental Register. This Section 2(a) refusal ensued.

To establish a false suggestion of a connection between Applicant Mefona and the Central Bank of Nigeria, the Office had to prove that: 

• (1) The term ENAIRA in Applicant’s mark is the same as, or a close approximation of, the Central Bank of Nigeria’s name or identity, as previously used or identified with the Central Bank of Nigeria; 
• (2) The term ENAIRA in Applicant’s mark would be recognized as such because it points uniquely and unmistakably to the Central Bank of Nigeria; 
• (3) The Central Bank of Nigeria is not connected to or otherwise affiliated with Applicant; and 
• (4) The Central Bank of Nigeria is of sufficient fame or reputation that, when the term ENAIRA is used in connection with the “Financial services, namely, providing a virtual currency for use by members of an on-line community via a global computer network” identified in the application, a connection with the Central Bank of Nigeria would be presumed.

The examining attorney failed to establish any one of these elements, and so reversal of the refusal was required.

The examining attorney argued that "ENAIRA is a mark used by the Central Bank of Nigeria, that it would be recognized as such in that it points uniquely and unmistakably to that institution, that the institution is not connected with the applicant, and that the reputation of the institution is of such a nature that a connection would be presumed."

In its opinion, the Board focused on the fourth element as dispositive. The Board pointed out that in prior cases in which a false suggestion of a connection with a foreign person or institution has been found, the records have included evidence of "significant exposure of the person or entity to United States consumers."

The examining attorney did not provide any evidence regarding the extent, if any, of the exposure of any of the materials in the record to United States consumers. "Many of the webpages and articles in the record come from what appear to be foreign websites based either on their domain names or their contents."

The Board observed that there was no evidence of the size or activities of the Nigerian diaspora in the United States, no evidence of the extent or nature of the trade or financial relations between the United States and Nigeria, no evidence regarding the number of visitors to the website of the Central Bank of Nigeria at cbn.gov.ng, including the number of United States consumers who have visited the site, and no evidence of the size of the United States readership or viewership of the articles and websites in the record.

The Board concluded that it could not, from this record, draw the inference that the Central Bank of Nigeria is so well-known to United States consumers that the use of the ENAIRA mark will cause consumers of the services identified in the application to presume a connection with the Central Bank of Nigeria. "At the very least, we have significant doubt that the Central Bank of Nigeria is sufficiently well-known in the United States, and we must resolve that doubt in favor of Applicant."

And so, the Board reversed the refusal to register.

Read comments and post your comment here.

TTABlogger comment: What will happen if the applicant tries to enforce its rights, if any, in the mark? Will the adversary do the work to come up with better evidence? PS: see the Board's last footnote: "Our decision, of course, does not prevent the Central Bank of Nigeria, or any other interested party, from petitioning to cancel Applicant’s Supplemental Register registration based on Section 2(a), or other grounds for cancellation, and providing a better-developed record."

Text Copyright John L. Welch 2025.