HQ 0734073 - Country of origin marking of 35mm color film, registered trademarks, containers, 19 CFR 134.47, 19 CFR 134.46 - United States International Trade Commision Rulings

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HQ 734073
July, 10 1991

MAR-2-05 CO:R:C:V 734073 RSD

CATEGORY: MARKING

Brenda Jacobs, Esq.
Sharretts, Paley, Carter & Blauvelt
1707 L Street, N.W.
Washington, D.C. 20036

RE: Country of origin marking of 35mm color film, registered trademarks, containers, 19 CFR 134.47, 19 CFR 134.46

Dear Ms. Jacobs:

This is in response to your letter dated March 8, 1991, requesting a ruling on the country of origin marking requirements for 35mm color film made in Japan and imported by Fuji Photo Film USA, Inc. We are also in receipt of your additional submissions dated April 1, 1991, April 29, 1991, and June 20, 1991. Two sample film packages were also received.

FACTS:

Fuji Photo Film USA, Inc., (Fuji) imports 35mm color film used in photography. Each role of film is sold in a package which indicates the type of film and number of exposures. The packages contain various information regarding the product and are marked "MADE IN JAPAN" in two places. The back of the package contains the following statement "MADE IN JAPAN by FUJI FILM CO., LTD., TOKYO." On the bottom of the package beneath the bar code there are statements "MANUFACTURED FOR THE U.S.A." and "MADE IN JAPAN."

On one of the sample packages of the film there is a sticker with a logo which states "OFFICIAL FILM OF THE U.S. SWIMMING TEAM." The logo also has a design in red, white and blue with the words USA SWIMMING. The other sample package has a sticker with the words "FUJI FILM OFFICIAL FILM OF THE U.S. TRACK AND FIELD TEAM" and a design showing runners against a background of the letters USA in white on a red background. Beneath the runners design the words, the words "TRACK AND FIELD TEAM" are printed.

A letter was submitted from the Athletics Congress/USA which indicates that the Fuji is authorized to use the logos described above. The logo of the U.S. Swim Team was registered with United States Patent and Trademark Office. A copy of the certificate of registration with United States Patent and Trademark Office was submitted. An application for a registered trademark was filed for The U.S. Field and Track Team logo and is now pending before the United States Patent and Trademark Office. A copy of the application for registration was also submitted.

ISSUE:

Does the placing of the U.S. Swim Team and U.S. Track and Field Team logos on the packages of film trigger the requirements of 19 CFR 134.47 or 19 CFR 134.46?

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.

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 it 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 requirement, the country of origin marking must appear on the same side(s) or surface(s) in which the name of the locality other than the country of origin 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.

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 the words "Made in," "Product of," or other similar words, in close proximity or in some other conspicuous location (emphasis added). In such circumstance, no comparable size requirement exists.

One of the two logos that Fuji is planning to put on the film packages, that of the U.S. Swim Team, is a registered trademark and will be used by Fuji with the trademark holder's permission. An application is now pending before the U.S. Patent and Trademark Office for the registration of the U.S. Track and Field Team logo, which is the other logo that Fuji is planning to put on the packages of the film. Customs is currently reviewing the issue of whether or not a trademark must be registered in order to trigger the requirements of 19 CFR 134.47. Until Customs has resolved this issue and published its position, the requirements of 19 CFR 134.47 rather than 19 CFR 134.46 will be applied to all trademarks with a U.S. reference, registered or not.

Therefore, the issue presented is whether the two samples satisfy the provisions of 19 CFR 134.47. The words "MADE IN JAPAN," are printed on the film package in two locations. We find that the country of origin markings can be easily found and read. Therefore, the country of origin markings on the sample packages satisfy the conspicuous location requirement of 19 CFR 134.47. Accordingly, the country of origin marking satisfies the requirements of 19 CFR 134.47.

We also note that the words "MANUFACTURED FOR THE U.S.A." below the bar code on the bottom of the package trigger the requirements of 19 CFR 134.46. The requirements of 19 CFR 134.46 are satisfied by the country of origin marking "MADE IN JAPAN," which is in close proximity to and in a comparable size as the phrase "MANUFACTURED FOR THE U.S.A."

HOLDING:

The references on the sample film packages to the U.S. and USA which appear as part of a trademark trigger the requirements of 19 CFR 134.47. The country of origin markings on the on the sample packages of film satisfies the requirements of 19 CFR 134.47 and 19 U.S.C. 1304. The words "MANUFACTURED FOR THE U.S.A." on the bottom of the package trigger the requirements of 19 CFR 134.46. The requirements of 19 CFR 134.46 are satisfied by the country of origin marking "MADE IN JAPAN" which appears in close proximity to and in comparable size letters.

Sincerely,

John Durant, Director
Commercial Ruling Division

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