HQ 0734361 - Country of origin marking requirements applicable to decorative tags (fob-like rubber or dual-image reflective plastic pieces) bearing a trademark which references a geographic name (foreign locality) other than that of the country of origin of the imported article (athletic shoes) that are attached to the imported article by means of a short ball chain. 19 CFR 134.47; trademark; initial reference to trademark; 19 CFR 134.41(b); conspicuousness; 19 CFR 134.36(b); C.S.D. 88-38; C.S.D. 89-91; 722064; 733833; 734293; 734277; 19 CFR 134.45(c); C.S.D. 86-5; T.D. 86-129; 729737; multiple references; 734232 - United States International Trade Commision Rulings

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HQ 734361

April 13, 1992

MAR-2-05 CO:R:C:V 734361 GRV

CATEGORY: MARKING

Mr. Prakash Marag
Import Coordinator
Jack Schwartz Shoes, Inc.
155 Avenue of the Americas
New York, N.Y. 10013

RE: Country of origin marking requirements applicable to decorative tags (fob-like rubber or dual-image reflective plastic pieces) bearing a trademark which references a geographic name (foreign locality) other than that of the country of origin of the imported article (athletic shoes) that are attached to the imported article by means of a short ball chain. 19 CFR 134.47; trademark; initial reference to trademark; 19 CFR 134.41(b); conspicuousness; 19 CFR 134.36(b); C.S.D. 88-38; C.S.D. 89-91; 722064; 733833; 734293; 734277; 19 CFR 134.45(c); C.S.D. 86-5; T.D. 86-129; 729737; multiple references; 734232

Dear Mr. Marag:

This is in response to a letter written October 1, 1991, by Ms. Charlotte Magill, formerly with your company, requesting a ruling regarding the country of origin marking requirements applicable to decorative tags (fob-like rubber or dual-image reflective plastic pieces) bearing a trademark ("British Knights") which reference a geographic name other than that of the country of origin (Korea) of the imported article (athletic shoes) that are attached to the imported article by means of a short ball chain. A sample, boxed pair of shoes with the subject rubber and plastic decorative tags attached was submitted for examination. In telephone conversations with a member of my staff on February 21 and April 3, 1992, you added and clarified certain information which was considered in this ruling.

FACTS:

Athletic shoes made and packaged in Korea will be imported into the U.S. and sold as "BRITISH KNIGHTS" products--"British Knights" is a registered trademark. Each shoe is individually marked to indicate its country of origin ("MADE IN KOREA") and contains multiple references to the trademark, as do the packaging articles (paper hang tag, wrapping paper, and shoe box). Attached to one of the shoes--by a short length of chain-- will be a decorative plastic or rubber fob-like piece that further denotes the trademark, either in full or by initial reference ("BK"), and the country of origin on the same side of the piece.

The country of origin is denoted once on the inside of each shoe: printed in approximately 5-point type (>1/16 inch letters) on a fabric label that is sewn onto the top inside of the tongue of each shoe. The trademark is denoted twice on the outside of each shoe: sewn onto the top of the back of each shoe in letters approximating 7-point type (<1/8 inch letters), and impressed onto the top outside of the tongue of each shoe in a contrasting color in letters approximating 10-point type (>1/8 inch letters). The initials "BK" are denoted twice on the outside of each shoe: printed in approximately 9-point type (1/8 inch letters) on a plastic diamond stud pressed onto the outside of the shoe by the top of the eyelets, and molded onto the bottom of the shoe in a contrasting color in letters approximating 20- point type.

Attached to an eyelet of one of the shoes are a twice- folded paper hang tag--attached by a plastic thread loop--and a decorative plastic or rubber fob-like piece--attached as indicated above. On the hang tag the words "PRINTED IN KOREA" appear along with the trademark; the former is printed in approximately 4-point type (1/16 inch letters) on the back of the fold-out hang tag, whereas, the latter--both in initial reference and spelled out--is printed on the front of the hang tag in bolded type. Although the spelled out trademark reference is printed in approximately the same point-type as the country of origin reference, the initial reference is printed in even bolder letters measuring approximately 15-point (>3/16 inch letters). On average, the decorative tags are marked in a print size that is half the print size used to denote the trademark reference. In sum, the overall condition/appearance of the shoe is that the trademark is referenced more than the country of origin marking in a print size and type that is larger than that used to indicate the country of origin marking.

On the packaging (tissue wrapping paper and the shoe box) for the shoes, the country of origin is referenced, for the most part, each time the trademark is referenced. The tissue wrapping paper is repetitiously-printed with both markings. And although the trademark is referenced in a bolded print size that is twice as large as the country of origin marking on the tissue paper, the country of origin marking is denoted at least 24 times. The cardboard shoe box denotes the country of origin and trademark once each on the end panel, and the trademark is referenced twice as many times as the country of origin on the bottom of the box. And again, although the trademark is referenced in a bolded print size that is twice as large as the country of origin marking, the country of origin marking is denoted at least three times.

In all, the country of origin is denoted some 30 times on the packaged shoes. Given these numerous references to the country of origin on the article and its packaging, you believe that the further reference to the country of origin on the decorative tags is not necessary and request that we so rule.

ISSUES:

I. Must the decorative tags (attached by short ball chains to paper hang tags marked "PRINTED IN KOREA" that are attached to the footwear) bearing a trademark which reference a foreign locality other than that of the country of origin of the imported article be further marked to indicate the country of origin of the athletic shoes to meet the requirements of 19 U.S.C. 1304 and 19 CFR 134.47, when multiple references to the country of origin are already denoted on the article and its packaging?

II. Whether the paper hang tags attached to the footwear must be marked with the country of origin of the footwear (i.e., "Made in Korea"), rather than "Printed in Korea.

LAW AND ANALYSIS:

The marking statute, 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 pur- chaser 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 "Ultimate Purchaser" Consideration

The primary purpose of the country of origin marking statute is to "mark the goods so that at the time of purchase the ulti- mate purchaser may, by knowing where the goods were produced, be able to buy or refuse to buy them, if such marking should influ- ence his will." United States v. Friedlaender & Co., 27 CCPA 297, 302, C.A.D. 104 (1940). The "ultimate purchaser" is defined generally as the last person in the U.S. who will receive the article in the form in which it was imported. 19 CFR 134.1(d). Example (3) of this section provides that if an article is to be sold at retail in its imported form, the purchaser at retail is the "ultimate purchaser."

The Conspicuous Marking Requirement

The clear language of 1304 requires 'conspicuous' marking, and to this end 134.41(b) provides, in part, that the ultimate purchaser in the U.S. must be able to find the marking easily and read it without strain. In this regard, we have noted that the concept of conspicuousness embraces two concerns: (1) visibility, which is concerned with the requirement that the marking must be able to be found easily, and (2) legibility, which is concerned with the requirement that the marking must be able to be read without strain.

Special Marking Requirements Applicable to Markings Referencing a Locality Other Than Country of Origin of the Imported Article

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 article's country of origin. Consequently, if such markings that reference a locality other than the country of origin of an imported article are present, further marking requirements at 19 CFR 134.46 or 134.47 may be applicable. See, C.S.D.s 89-91 and 88-38. While 134.46 imposes marking requirements affecting both the location (close proximity) and type size (comparable) of the country of origin marking, 134.47 requires only that the country of origin marking appear in a conspicuous location vis-a-vis the other locality marking. In either instance, the name of the country of origin must be preceded by "Made in," "Product of," or words of similar meaning.

It is Customs position that the special marking requirements of 19 CFR 134.47 apply if a foreign locality reference is part of a trademark. See, Headquarters Ruling Letters (HRLs) 722064 dated August 9, 1983; cited in 733833 dated February 19, 1991, 734293 dated October 24, 1991, and 734277 dated December 24, 1991. And because the trademark in this case employs the adjectival form of the name of a country other than the country of origin of the imported article, it is subject to the marking requirements of 134.47. See 134.45(c); cf., HRL 733833 (while the name "Britania" is suggestive of a country other than the country of origin of the imported article, as it is not the long or short form of that country, the name does not trigger the special marking requirements).

Within the context of 134.47, in C.S.D. 89-91, we stated that although the country of origin marking may be significantly less prominent and not necessarily located in close proximity to the trademark, if the country of origin marking could be found upon a casual inspection--and was located in its usual location for such merchandise--and was otherwise proper, it could be found to satisfy the requirements of 134.47.

In C.S.D. 86-5, we considered the country of origin marking requirements applicable to certain athletic footwear and shoe boxes, each of which prominently displayed a variety of symbols associated with a country other than the country of origin of the imported shoes. Believing that most consumers would conclude that the articles were from the other country symbolized, rather than from the country of origin denoted, we stated that, in order to satisfy the conspicuousness requirement, Customs would require that both the shoes and the shoe box be conspicuously marked with the country of origin.

In this case, a trademark employs a geographical reference --in the adjectival form--other than the country of origin, thus, the less stringent marking requirements of 134.47 are applicable. And after examining the shoe sample submitted, we are persuaded in this case that the multiple references to the country of origin on the article, the paper hang tag (as modified below), the wrapping paper and the shoe box are sufficient enough to adequately inform an ultimate purchaser of the country of origin of the athletic shoes, such that requiring the country of origin to be further designated on the fob-like articles attached by chains to the shoes is not required. This finding is based on the facts that the country of origin markings on the shoes themselves are located in the usual place for shoe articles, and otherwise because the country of origin marking could be found easily upon a casual inspection of the wrapping paper, box, etc. Further, the markings are printed in a print size that is conspicuous enough to be read without strain. However, regarding the paper hang tag, we require that it, rather than be marked to indicate where it was "printed," be marked to further reflect the country of origin of the article it is attached to, as Customs has always considered such tags to be part of the imported article. Because of the numerous references to the "British Knights" trademark, the marking of the paper hang tag in this manner is required.

HOLDING:

If the paper hang tag is marked in accordance with 19 CFR 134.47, which requires that the country of origin be clearly designated by the phrase "PRODUCT OF (KOREA), or words of similar meaning, then the country of origin of the imported athletic shoes does not have to be further denoted on the decorative tags (the plastic or rubber fob-like pieces attached by short ball chains to the paper hang tags that are attached to the footwear). The country of origin marking requirements of 19 U.S.C. 1304 and 19 CFR 134.47 are satisfied in this case, as sufficient, conspicuous references to the foreign origin of the imported merchandise are properly denoted on the article and its packaging.

Sincerely,

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