HQ 0732191 - Country of origin marking of paint brush sets - United States International Trade Commision Rulings

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HQ 732191

April 27, 1990

MAR-2-05 CO:R:C:V 732191 RSD

CATEGORY: MARKING

Mr. Paul W. Dumanski
Rubberset Company
Division of Sherwin-Williams Company
P.O. Box 231
Rt. 413
Crisfield, Maryland 21817

RE: Country of origin marking of paint brush sets

Dear Mr. Dumanski:

This is in response to your letter of March 3, 1989 requesting a country of origin marking ruling for imported paint brushes. We regret the delay in responding.

FACTS:

Rubberset Company, Division of the Sherwin-Williams Company, imported paint brush sets made in Canada on February 6, 1989, through the port of Buffalo, New York. Customs in Buffalo determined that the country of origin marking on the paint brushes was improper because the packaging on the brushes contained a U.S. address without a country of origin marking in close proximity to the U.S. address. A marking notice was issued on March 2, 1989, which informed you that the marking was improper. The marking notice also advised that your firm could contact Customs Headquarters and obtain a binding ruling on the sufficiency of the marking.

Your letter states that the paint brushes were made in Canada for sale in Sherwin-Williams stores. You further indicate that once Customs informed you that the merchandise needed to be marked with the country of origin, the brushes were stamped on the handle "Made in Canada." It is your preference to mark the brushes and not mark the packaging because it is more costly and more time consuming to place stickers on the packages. You also point out that the handle stamp is truly permanent, while the packaging is generally disposed of after the purchase of the brushes.

A sample was submitted consisting of a pair of paint brushes which is apparently packaged in a cardboard wrapper to be sold as a set. The brushes are held together by tape and a cardboard sleeve which can slide off easily. Several references to names of U.S. places appear on the packaging: the words "WHITE CHINA BRISTLE" appear in large letters on the front and back of each cardboard wrapper; the words "Crisfield, Maryland" appear in very small letters on the back of each cardboard wrapper; and, the words "Cleveland, Ohio" appear in small letters on the back of the cardboard sleeve. The front of each brush is stamped "MADE IN CANADA" in blue letters 1/8 inch high.

ISSUE:

Must the packaging on the paint brush set be marked with the country of origin of the brushes?

LAW AND ANALYSIS:

Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304), provides that, unless excepted every article of foreign origin imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the article (or container) will permit, in such a manner as to indicate to the ultimate purchaser in the U.S. the English name of the country of origin of the article. Congressional intent in enacting 19 U.S.C. 1304 was that the ultimate purchaser should be able to know by an inspection of the marking on the imported goods the country of which the goods is the product. The evident purpose is to mark the goods so that at the time of purchase the ultimate purchaser may, by knowing where the goods were produced, be able to buy or refuse to buy them, if such marking should influence his will. United State v. Friedlaender & Co., 27 C.C.P.A. 297 at 302.

Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. As provided in section 134.41, Customs Regulations (19 CFR 134.41), the country of origin marking is considered to be conspicuous if the ultimate purchaser in the U.S. is able to find the marking easily and read without strain.

In addition, section 134.46, Customs Regulations (19 CFR 134.46), requires that when the name of any city or locality in the U.S., or the name of any foreign country or locality other than the name of the country or locality in which the article was manufactured or produced, appear on an imported article or its container, there shall appear, legibly and permanently, in close proximity to such words, letters or name, and in at least a comparable size, the name of the country of origin preceded by "Made in," "Product of," or other words of similar meaning. Customs has ruled that in order to satisfy the close proximity requirements, the country of origin marking must appear on the same side(s) or surface(s) in which the name of the U.S. locality appears (HQ 708994, dated April 24, 1978). The purpose of 19 CFR 134.46 is to prevent the possibility of misleading or deceiving the ultimate purchaser as to the origin of the imported article.

The submitted sample does not satisfy the requirements of 19 CFR 134.46. As indicated above, the front and back of the packaging contain several references to locations other than the country of origin: Crisfield, Maryland; Cleveland, Ohio; and China on the back; and China on the front. In order to satisfy the close proximity requirement of 19 CFR 134.46, the country of origin must appear the on same side or surface as these references. This would be accomplished by marking the country of origin once on the front and once on the back of the cardboard wrapper of each brush in a location where it will not be obscured by the cardboard sleeve.

Although 19 CFR 134.46 also requires that the country of origin appear in comparable size letters as the locality other than the country of origin, in this case it is not necessary for the country of origin to appear in comparable size letters to the words "WHITE CHINA BRISTLE." This term describes a particular type paint brush bristle usually made of pig hair and with a reputation for good quality. Although this term may confuse some ultimate purchasers as to the country of origin of the paint brushes, the term also provides descriptive product information to the ultimate purchaser. Under these circumstances, we find that any confusion caused by the use of this term would be eliminated if the country of origin were to appear conspicuously and in close proximity to these words. The comparable size requirement applies, however, to the U.S. references on the packaging.

HOLDING:

We find that in addition to the country of origin marking on the brush handles, the country of origin marking must also conspicuously appear once on the front and once on the back of the cardboard wrapper of each brush. The marking must be preceded by the phrase "Made in," "Product of," or words of other similar meaning.

Sincerely,

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