HQ 0731314 - Country of Origin Marking Requirements for a T-shirt bearing the trademark "Perry Ellis America" - United States International Trade Commision Rulings

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HQ 731314
July 18, 1988

MAR-2-05 CO:R:C:V 731314 LR

CATEGORY: MARKING

Diane L. Weinberg, Esq.
Rode & Qualey
295 Madison Avenue
New York, NY 10017

RE: Country of Origin Marking Requirements for a T-shirt bearing the trademark "Perry Ellis America"

Dear Ms. Weinberg:

This is in response to your request dated March 15, 1988, for a country of origin marking ruling on behalf of your client, Perry Ellis Division of Manhattan Industries, Inc. Specifically, you request a ruling that the submitted sample T-shirt is legally marked and falls within the exception for trademark articles under section 134.47, Customs Regulations.

FACTS:

The sample garment, a product of Zimbabwe, is a short- sleeved black T-shirt with a rib knit neckband. The words "Perry Ellis America", a registered trademark of your client, appear in two locations on the T-shirt: on the outside of the shirt several inches above the hemline on the left-hand corner of the front panel and on the inside of the shirt on a textile label sewn into the center of the neck midway between the shoulder seams. The trademark on the front of the garment is prominently displayed in large white letters (approximately 1/4" in height and width); the trademark on the neck label appears in blue letters (approximately 1/8" in height and width) on a white label measuring approximately 2 1/2" x 1 1/4". The words "Made in Zimbabwe" appear in smaller black letters (approximately 1/16" in height and width) on another smaller textile fabric label (approximately 1" x 3/4"). The country of origin label is sewn into the bottom right hand corner of the "Perry Ellis America" label. The country of origin appears below the fabric content and the RN number. A third label indicating the size (in this case "M") is sewn below the "Perry Ellis America" label to the left of the country of origin label.

ISSUE:

Whether the country of origin label on the sample T-shirt is conspicuous within the meaning of section 304, Tariff Act of 1930, as amended (19 U.S.C. 1304), and section 134.47, Customs Regulations (19 CFR 134.47)?

LAW AND ANALYSIS:

As you are aware, 19 U.S.C. 1304 requires that articles of foreign origin imported into the United States be legibly, conspicuously and permanently marked to indicate the country of origin to the ultimate purchaser in the U.S. As provided in 19 CFR 134.41, the marking is considered conspicuous if the ultimate purchaser is able to find the marking easily and read it without strain. Special marking requirements are applicable when the word "America" appears on the article as part of a trademark. In such case, 19 CFR 134.47 provides that the article shall be legibly, conspicuously and permanently marked to indicate the name of the country of origin of the article preceded by "Made in," "Product of," or other similar words, in close proximity to the word "America" or in some other conspicuous location. (emphasis added)

The Customs Service has determined that country of origin marking appearing on the inside center of the neck of a shirt midway between the shoulder seams or in that immediate area is conspicuous within the meaning of 19 U.S.C. 1304 and is, in fact, the requisite location. See T.D. 54640(6). In T.D. 71-264(3), Customs ruled that marking of trouser, jeans and slacks should be made by means of a permanent label affixed in a conspicuous location on the garments, such as the inside of the waistband.

In HQ 729494, dated May 6, 1986, Customs ruled that a pair of slacks was not conspicuously marked where the country of origin label appeared inches beneath the waistband and far removed from the waistband's center seam and the brand name label. In that case, the lettering was miniscule by comparison with the brand name label, and the country of origin was "lost" in other wording regarding the material content and the lot number contained thereon. In the same ruling, a jacket was found not to be properly marked because the label, although located in the center of the neck area, was located behind and beneath the brand label so that only about half the country of origin was visible.

In HQ 729495, dated April 21, 1986, Customs ruled that certain men's shirts were not conspicuously marked as to country of origin. In that case, the shirt had two labels permanently affixed to the inside of the shirt collar. One label was placed in the middle of the back of the collar, and contained the inscription "Fabric Woven in U.S.A.", in white lettering approximately 1/16" in height and width, on a black background. The second label was sewn into the collar 5/8" below and 3/4" to the right of the first label, and contained the inscription "Assembled in Honduras" in block letters approximately 1/16" high and 1/32" wide. Headquarters found that the shirts in question did not satisfy the marking requirements because the fabric label was not affixed on the inside center of the neck midway between the shoulder seams or in that immediate area as required by T.D.

54640(6) and because the fabric label with the country of origin was significantly off to the side and partially obscured by the collar. (The marking also did not satisfy the requirements of 19 CFR 134.46, which are not applicable here).

In determining whether or not a particular country of origin marking is sufficiently conspicuous, Customs will take into account the presence of words or symbols on the article which may mislead the ultimate purchaser as to the country of origin. See HQ 729096, dated January 2, 1986 (In light of prominently displayed symbols indicative of a country other than the country of origin on both the imported article and the container, the country of origin label which appeared in a location of the shoe which normally would have been sufficiently conspicuous was not acceptable. Customs found that the container also had to be conspicuously marked with the country of origin).

The question here is whether or not the country of origin label is the neck area is sufficiently conspicuous in view of the two references to the "Perry Ellis America" trademark described above. While the country of origin label does not appear in close proximity to the "Perry Ellis America" trademark on the front of the garment, we find that it appears in "some other conspicuous location" and therefore satisfies the requirements of 19 CFR 134.47. Although the "Made in Zimbabwe" marking is not as prominent as the two references to "Perry Ellis America", we are of the opinion that the country of origin marking is conspicuous enough so that the ultimate purchaser would locate it easily upon a casual inspection and would not be misled by the two references to "America." This is attributable to the fact that the country of origin information appears in its usual location (in the inside center of the neck midway between the shoulder seams) and close to the fabric content and size designation, other important consumer information. The country of origin label on the submitted sample is also more conspicuous than the origin labels that appeared on the garments described above which were found to be unacceptable. The label here is not obscured by another label; nor is it off to the side or inches below the brand label. We also note that the two references to "America" are not as prominent as the misleading symbols which appeared on the shoes and shoe boxes in HQ 729096.

Despite our determination that the country of origin on the submitted sample is conspicuous, a few caveats must be noted. Since the country of origin label is below the brand name label, the garment could easily be packaged in a way so that the brand label is visible and the country of origin label is not. If the
country of origin is obscured in any way by packaging or otherwise prior to the time of sale to the ultimate purchaser, the marking would be unacceptable. In such circumstances, the ultimate purchaser would be misled by the word "America" which is prominently displayed on the garment. In addition, any change to the country of origin label to make it less conspicuous (e.g. smaller letters, placement lower down) would render the marking unacceptable.

HOLDING:

The submitted T-shirt, which is marked "Made in Zimbabwe" in the center of the neck, immediately below the brand name "Perry Ellis America" label is legally marked pursuant to 19 U.S.C. 1304 and 19 CFR 134.47.

Sincerely,

Marvin M. Amernick

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