HQ 0732416 - Country of origin marking of ski and tote bags - United States International Trade Commision Rulings

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HQ 732416
August 21, 1989

MAR-2-05 CO:R:C:V 732416 KG

CATEGORY: MARKING

Barry Kaplan
Serko & Simon
One World Trade Center
Suite 3371
New York, N.Y. 10048

RE: Country of origin marking of ski and tote bags

Dear Mr. Kaplan:

This is in response to your letter of May 16, 1989, on behalf of a manufacturer of ski and tote bags, requesting a country of origin ruling for imported bags. Three samples were submitted.

FACTS:

The first article is a small flat fabric bag with a zipper compartment and a velcro-like enclosure. It has a long fabric strap and is designed to be worn around the neck. The words "OBERMEYER Skiwear from the Heart of the Mountains. Aspen, Colorado" appear on the front of the bag. The bag is purple and the imprinted words are in neon green. Inside the bag is a fabric label containing the words "Louis Gregory Corporation Glouster, Mass. Tel: 617-283-4331 Made in Taiwan R.O.C.". Attached to the bag is a hangtag containing the words "MADE IN TAIWAN R.O.C." in large bold lettering.

The second article is a large rectangular shaped fabric bag with a zipper enclosure on top and two zipped compartments on each end. The words "OBERMEYER Skiwear from the Heart of the Mountains. Aspen, Colorado" appear in large lettering across two sides of the bag. The word "OBERMEYER" is about 1 3/4 inches in height while the phrase "Skiwear from the Heart of the Mountains. Aspen, Colorado" is about 1/2 inch in height. The bag is purple, fuchia and neon green with neon green lettering on the purple portion. Inside the bag is a fabric label containing the words "Louis Gregory Corporation Glouster, Mass. Tel: 617-283-4331 Made in Taiwan R.O.C.". Attached to the bag is a hangtag with the words "MADE IN TAIWAN R.O.C." in large bold lettering; the word "Taiwan" is about 1 inch in height.

The third article is a rectangular shaped fabric grey and red tote bag with the Olympic rings symbol and the letters "U.S.A." appearing about 1 inch in height on one side of the bag. The bag also has two hangtags. One hangtag contains the words "Louis Gregory Corporation" and on the other side, a Massachusetts address and telephone number. The second hangtag contains the words "MADE IN TAIWAN R.O.C." in large bold lettering; the word "Taiwan" is printed about 1 inch in height. You state that the Olympic ring symbol is a service mark used by the retailer under license from the U.S. Olympic Committee.

ISSUE:

Whether the three bags marked as described above comply with the country of origin marking requirements of section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304), and Part 134, Customs Regulations (19 CFR Part 134).

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 States v. Friedlaender & Co., 27 C.C.P.A. 297 at 302 (1940).

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), country of origin marking is considered conspicuous if the ultimate purchaser in the U.S. is able to find the marking easily and read it without strain.

The issue presented is whether the country of origin marking on the hangtags and the labels is conspicuous in light of the trademark or service mark which appears on each bag. 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. Consequently, if the words "United States," or "America," the letters "U.S.A.," any variation of such words or letters, or the name of any city or locality in the U.S., or the name of any foreign country or locality other than the country of origin, appears on an imported article in such a way as to be misleading to the ultimate purchaser, special marking requirements are triggered. Section 134.46, Customs Regulations (19 CFR 134.46), requires that in such case, the name of the country of origin must appear legibly, permanently, and in close proximity to such words, letters, or name, and in at least a comparable size, the name of the country of origin mst appear preceded by "Made in,""Product of," or other words of similar meaning. However, section 134.47, Customs Regulations (19 CFR 134.47), provides that when as part of a trademark or trade name or as part of a souvenir marking, the name of a location in the U.S. appears, the article shall be legibly, conspicuously, and permanently marked to indicate the name of the country of origin of the article preceded by words "Made in," "Product of," or other similar words, in close proximity or in some other conspicuous location. In such circumstances, no comparable size requirement exists.

In a similar case, HQ 732234 (March 31, 1989), Customs examined a set of imported luggage with a hangtag attached to the handle containing the registered service mark "Discover America". Each piece of luggage also had a fabric tag sewn into one of its inside seams containing the name and U.S. address of the importer and the country of origin marking "Made in Taiwan". Customs held that the country of origin marking sewn into the inside seam of the luggage was sufficiently conspicuous as required by 19 CFR 134.47 in light of the registered service mark appearing on the hangtag because it could be easily found and read upon casual inspection. Further, it was noted that in Circular MAR-2-RM (dated January 16, 1970), Customs determined that handbags should be marked by means of a fabric label sewn to the lining in a conspicuous place. In HQ 732234, Customs found that the same rationale applied to the set of luggage.

Customs held in HQ 732234 that the use of the name of a location in the U.S. was not misleading because the word was part of a trademark and the country of origin marking was conspicuous. That is, although the country of origin mark in each case was significantly less prominent and was not necessarily located in close proximity to the trademark, it could be found upon casual inspection, was otherwise proper and, therefore satisfied the requirements of 19 CFR 134.47. Likewise, in this case it is our opinion that 19 CFR 134.47 applies and that use of the registered trademark would not mislead the ultimate purchaser with respect to the origin of the two "Obermeyer" ski bags marked with the fabric labels sewn into the inside seam of the bags. On the hangtags attached to the ski bags, the name of the country of origin appears in close proximity to the trademark and is preceded by the words "Made In". The lettering used on these hangtags is sufficiently conspicuous. The importer noted that the hangtags submitted were mock-ups and the final tags might vary. Although slightly differing lettering would be acceptable, it must still be in compliance with 19 CFR Part 134.

On the other hand, the tote bag is not marked; the country of origin marking appears only on a hangtag. Because the tote bag bears a registered service mark, it is governed by 19 CFR 134.47.

HQ 732234 (March 31, 1989). While it is not required that the tote bag be marked with a fabric label sewn into the inseam, it is required by 19 CFR 134.47 that the tote bag be permanently marked. Further, the hangtag attached to the tote bag that contains the name and U.S. address of the manufacturer does not satisfy 19 CFR 134.46. This hangtag must be either removed or the country of origin must be printed on it below the U.S. address in sufficient size and legibility to be readable by the ultimate purchaser.

HOLDING:

Based on all the factors in this case and after careful examination of the submitted samples, we find that the ski bags, marked as described above, would not mislead the ultimate purchaser and are legally marked according to 19 U.S.C. 1304 and 19 CFR 134.47. However, the tote bag is not permanently marked and also contains a hangtag with a U.S. address and no country of origin marking. The tote bag, as submitted, is not legally marked with the country of origin.

Sincerely,

Marvin M. Amernick
Chief, Value, Special Programs

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