HQ 0733965 - Country of origin marking of leather watch straps. 19 CFR 134.11; article marking; primary method of marking article (hot foil in contrasting colors and cold stamping in same color); conspicuousness; 19 CFR 134.41; repacked articles; container marking; 19 CFR 134.34; 19 CFR 134.32(d); secondary marking; 19 CFR 134.26; degree of visibility/ legibility (print size and type); typography - United States International Trade Commision Rulings

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HQ 733965

June 3, 1991

MAR-2-05 CO:R:C:V 733965 GRV

CATEGORY: MARKING

John P. Donohue, Esq.
Donohue and Donohue
Fifth Floor, The Bank Building
421 Chestnut Street
Philadelphia, PA 19106

RE: Country of origin marking of leather watch straps. 19 CFR 134.11; article marking; primary method of marking article (hot foil in contrasting colors and cold stamping in same color); conspicuousness; 19 CFR 134.41; repacked articles; container marking; 19 CFR 134.34; 19 CFR 134.32(d); secondary marking; 19 CFR 134.26; degree of visibility/ legibility (print size and type); typography

Dear Mr. Donohue:

This is in response to your letters of November 25, 1990, and March 8, 1991, on behalf of Regal Industries, requesting a country of origin marking ruling regarding certain leather watch straps. Samples of leather watch straps were submitted for examination.

FACTS:

Prior to July of 1989, Regal imported leather watch straps from Hong Kong, China and Thailand, as follows: leather watch straps, each cold stamped on its back with its country of origin, were bulk shipped in crates to the U.S. (You indicate that cold stamping is a post-manufacturing method of marking that leaves a non-inked impression on the article in the same color as the article itself). After entry, the merchandise was variously distributed: approximately 95% of the watch straps were individually packaged for retail sale, and the remaining 5% were sold to watch repairers without being packaged. The watch straps that were individually packaged were placed on felt paper backing material and encased in a clear plastic container. Because the initial, cold stamp marking was obscured by this packaging method, the country of origin was secondarily denoted on a small paper label--measuring approximately one by one and half inches-- that was placed on the inside front of the plastic container. This paper label contained other product/consumer information, all of which was printed in larger print sizes and heavier print types than the country of origin marking was printed in: the brand name of the merchandise is printed in approximately 8-point (a point is a unit of type measurement equal to 0.01384 inch or nearly 1/72 in., and all type sizes are multiples of this unit), boldface print and the retail price of the watch strap is printed in approximately 13-point, boldface print, whereas the country of origin marking is printed in 3-point, lightface print, which is hard to read. (For an understanding of the print size/type terms referenced here, see the entry under "Type (printing)" in volume 18 of McGraw-Hill Encyclopedia of Science & Technology (6th ed., 1987), or the entry under "Printing" (in pre-1985) or "Printing, Topography and Photoengraving" (printings since 1985) in volume 14 of The New Encyclopaedia Britannica (15th ed., 1975)).

Starting in July of 1989, Customs officers informed you that the merchandise was not legally marked and marking notices were issued. You state that the Customs officers required Regal to adopt the following marking scheme: (1) hot foil stamp the watch straps, which marks the merchandise in contrasting colors; (2) place gummed labels on the back of all watch straps; and, (3) enlarge the size of the country of origin designation on the paper labels in the clear plastic containers. You believe that some of these marking instructions are onerous and request that we rule on the following proposed marking method(s) for future entries: (1) exempting those imported watch straps which will be repackaged in clear plastic containers with a paper label indicating the country of origin of the particular watch strap; and, (2) exempting those imported watch straps which will not be packaged, but will be sold to watch repairers and have adhesive labels in contrasting colors affixed to the back surface of the watch straps; or (3) approving the pre-1989 marking program of cold stamping the country of origin on the backs of all the imported watch straps.

Customs import specialists have indicated that the reasons for the marking changes were two-fold. First, it was believed that the initial cold stamp method of marking the country of origin on the imported leather watch straps and the printing of the country of origin on the paper label for the packaged watch straps in the smallest print size and lightest print type employed to print the various consumer/product information on the paper label presented legibility/visibility and conspicuousness problems for the ultimate purchaser. Second, because the imported watch straps were variously distributed--to watch repairers without packages (5%) and to stores in individual retail packages (95%), and Customs was unable to determine which 5% of the imported watch straps would not be packaged for retail sale, a back up or secondary marking of all the watch straps was deemed appropriate. Thus, to ensure that all watch straps were adequately marked regardless of which market--packaged or not-- your client chooses to distribute the watch straps in, the marking changes were prescribed.
Regal has instituted some of the marking changes proscribed so that the leather watch straps are currently imported with their respective country of origins hot foil marked (also a post- manufacturing method of marking, however, one which leaves the article marked in contrasting colors) on their backs at the tip of the overlaying strap. However, while the country of origin marking on the leather strap sample submitted--printed in approximately 6-point type--is highly visible and enables the consumer to read it without strain when seen, its location--at the tip of the overlaying strap--renders its conspicuousness less than easy to find, as the underlying strap obscures the tip of the overlaying strap when a consumer turns the strap over to view the marking. The print size and type employed to denote the country of origin marking on the paper labels has not been changed; it is still printed in the smallest print size and lightest print type on the label.

ISSUES:

I. Regarding the initial country of origin marking of all the bulk shipped leather watch strap articles, whether the hot foil method of marking each leather watch strap on its back in contrasting colors at the tip of the overlaying strap comply with the marking requirements of 19 U.S.C. 1304.

II. Regarding the secondary country of origin marking of the repackaged leather watch strap articless, whether the print size and type employed on the paper label to denote the country of origin of the retail-packaged leather straps is sufficient to meet the conspicuous and legibility requirements of 19 U.S.C. 1304.

LAW AND ANALYSIS:

The marking statute, section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304), provides that, unless excepted, every article of foreign origin (or its container) imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly and permanently as the nature of the article (or its container) will permit in such a manner as to indicate to the ultimate purchaser the English name of the country of origin of the article. Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304.

The primary purpose of the country of origin marking statute 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 CCPA 297, 302, C.A.D. 104 (1940). The clear language of section 1304 requires 'conspicuous' marking, and to this end section 134.41, Customs Regulations (19 CFR 134.41), further provides, in part, that the ultimate purchaser in the U.S. must be able to find the marking easily and read it without strain.

Regarding the initial country of origin marking of all the leather watch straps

Concerning the condition of the bulk shipped leather watch straps at their time of importation, based on an examination of the sample leather watch strap submitted, we find that the hot foil stamping method of marking the leather straps is legible in that the resulting contrasting colors are easy to read, once they are located. However, we do not find that the location of the marking--on the tip of the overlaying strap of the buckled watch strap, is conspicuous, as the ultimate purchaser cannot merely turn the watch strap over to locate the marking. Rather the ultimate purchaser must unbuckle the watch strap to find the country of origin marking in the first instance. Accordingly, the leather watch straps are not deemed to be marked in a manner that fully meets the marking requirements of 19 U.S.C. 1304, in that the location of the country of origin marking is not easy to find. However, if the location of the hot foil marking is moved to some other part of the watch strap backs, away from where the straps overlay each other as a result of being buckled together, then the merchandise would be marked in compliance with the marking requirements of 19 U.S.C. 1304.

As the initial, hot foil marking scheme, modified as to its location on the leather strap as indicated above, is sufficient to meet the "conspicuous" and "legibility" requirements of the marking statute, the need to affix gummed labels on the backs of all the watch straps is obviated. Accordingly, we do not address your second and third marking proposals--calling for exempting those imported watch straps which will not be packaged because they will have adhesive labels affixed to the back surfaces and approving the pre-1989 marking program, as these marking proposals were instituted over concerns regarding the conspicuousness of the cold stamp marking, which have now been addressed.

Regarding the secondary country of origin marking of the repackaged leather watch straps

Concerning certain articles that are repacked after importation, section 134.34, Customs Regulations (19 CFR 134.34), provides, in part, that:

[a]n exception under section 134.32(d) may be authorized in the discretion of the district director for imported articles which are to be repackaged after release from Customs custody under the following conditions:

(1) The containers in which the articles are repacked will indicate the origin of the articles to an ultimate purchaser in the United States.
(2) The importer arranges for supervision of the marking of the containers by Customs officers at the importer's expense or secures such verifica tion, as may be necessary, by certification and the submission of a sample or otherwise, of the marking prior to the liquidation of the entry. (Emphasis supplied).

This exception to the marking requirements, however, is available only to merchandise which will be repacked after importation into containers which will be marked to reasonably indicate the origin of the articles to the ultimate purchasers. 19 CFR 134.32. Because the merchandise in this case will not be uniformly repacked--some (5%) will be sold without being packed, this exception cannot apply to those watch straps which will not be repacked into marked containers and they must be legally marked at the time of importation. Further, this marking exception is applicable to those watch straps which will be repacked into marked containers only if they can be identified and segregated from those which will not be repacked at the time of importation. It does not appear that this condition is met in the present case. Thus, concerning your first proposed marking scheme to exempt those imported watch straps which will be repacked after importation, you must present this marking proposal to the district director of the port of importation for his/her approval.

Regardless of the applicability of section 134.34, section 134.26, Customs Regulations (19 CFR 134.26), also relates to imported articles that are repacked or manipulated, and similarly provides, in part, that:

[i]f an article subject to these requirements is intended to be repacked in retail containers (e.g., blister packs) after its release from Customs custody, or if the district director having custody of the article, has reason to believe such articles will be repacked after its release, the importer shall certify to the district director that: (1) [i]f the importer does the repacking, he shall not obscure or conceal the country of origin marking appearing on the article, or else the new container shall be marked to indicate the country of origin of the article in accordance with the requirements of this part; ....

Thus, regarding those leather watch straps that will be repacked, assurances must be given to the district director, in the form of the written certification statement provided for at section 134.26, that the country of origin marking will not be obscured or concealed by the repackaging operation. Lastly, we address the issue of whether the country of origin marking on the paper label of the retail-packaged watch straps is sufficient to meet the conspicuousness requirement of 19 U.S.C. 1304. Initially, we note that the concept of conspicu- ousness embraces two concerns: (1) visibility, which addresses the requirement that the marking must be able to be found easily, and (2) legibility, which addresses the requirement that the marking must be able to be read without strain. We also note that, in general, information presented in boldface print and/or a large print size tends to draw the ultimate purchaser's atten- tion away from other information that is presented in lightface type and/or a smaller print size. Lastly, we note that the country of origin marking should be presented in format that is conspicuous: made readily apparent, 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.

In this case, given that various print sizes and types are employed to denote various information on the paper label and that the country of origin marking is presented in the lightest- face print and that the size of the marking is very small (3- point type), we find that the country of origin marking is not easy to read and that it does not comply with the marking requirements of 19 U.S.C. 1304 and 19 CFR 134.41(b). We suggest that the print size of the country of origin marking on the paper label be enlarged to at least a 5-point type and that it be in sufficient boldface print so that it is easy to read.

HOLDING:

Based on the information presented and after viewing the samples submitted, the bulk shipped leather watch straps that are initially hot foil marked with their respective country of origins on the back of the over laying strap at the tip are not properly marked for purposes of the marking statute, because the marking is not in a conspicuous (easy to find) location. Although the marking is legible, the location of the marking must be moved away from the tip of the buckled strap so that it is readily apparent to the ultimate purchaser.

The repacked watch straps that have their respective country of origins secondarily denoted in 3-point, lightface print on paper labels that are inserted into the clear containers do not satisfy the requirements of 19 U.S.C. 1304 and 19 CFR 134.41(b).

Concerning the issue of whether the imported leather watch straps may be exempt from the marking requirements under section 134.34, Customs Regulations (19 CFR 134.34), because some (95%) will be repacked, the district director of the port where the merchandise will be imported has the discretion to authorize this marking exception. If you believe the transaction qualifies for this article exemption, you must present this marking proposal to the district director for his/her consideration.

Sincerely,

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