HQ 0734427 - Country of origin marking of a replica baseball marked "MADE IN U.S.A." which duplicates the printing on the original baseballs, when the replica baseball is actually made in China. - United States International Trade Commision Rulings

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HQ 734427
May 4, 1992

MAR-2-05 CO:R:C:V 734427 KR

CATEGORY: MARKING

Mr. John Stote III
Vice President
Anaconda Sports Inc.
1 Anaconda Drive
Lake Katrine, N.Y. 12449

RE: Country of origin marking of a replica baseball marked "MADE IN U.S.A." which duplicates the printing on the original baseballs, when the replica baseball is actually made in China.

Dear Mr. Stote III:

This is in response to your letter dated November 5, 1991, requesting a country of origin marking ruling concerning replica baseballs which you intend to import from China. You submitted for example an authentic pre-1977 horsehide Spalding baseball from which you are modelling your reproduction. You submitted the art work to be used to print the graphics on the replica baseball. You also submitted a piece of horsehide used to wrap the baseball and copies of original advertisements from Spalding concerning the authentic Spalding and Reach baseballs.

FACTS:

You state that Anaconda Sports Inc. intends to import from China, replica vintage horsehide baseballs. You intend to import two different styles of baseball, one with a "Spalding" marking, and one with a "Reach" marking. These baseballs are intended to be reproductions of horsehide baseballs produced from 1879 until 1977. The balls will be sold through your retail stores, through trade publications and through corporate sales.

The baseball is made in China, in part from horsehide that is shipped from the U.S. The replica baseballs will have the identical markings as the original pre-1977 baseballs. The National League style baseball is marked "Official National League" with the signature of a president of the National League.

On the panel directly below this are the words "the cushioned cork center". A depiction of a baseball with the word "Spalding" inside, is below this. Finally, the following words and abbreviations appear:

REG. U.S. PAT. OFF.
MADE IN U.S.A.

The American League style baseball is marked similarly. The difference between the replica Spalding baseball and the replica Reach baseball is that where the baseball states "National" it will state "American", the signature is different and inside the depiction of a baseball it states "Reach" inside a geometric figure instead of Spalding. The Reach baseball also states "MADE IN U.S.A." as described above.

In your letter you state that the printing of "MADE IN U.S.A." on the reproduction baseballs is "important to authenticate an exact replica." You expressed that you are not intending to mislead the public that the baseball is made in the U.S., when it is actually made in China. You state that you are willing to package and mark the baseball in a way that we determine that will correctly inform the public of the true country of origin of these replica baseballs. However, you indicate that any permanent marking on the ball which could not be removed by the ultimate purchaser would destroy the concept of an exact copy. You raised the possibility of affixing a sticker to the baseball with the country of origin at the time of manufacture. The baseball would then be placed in a plastic bag which will be sealed before being placed in a box. You state that the only time the bag would be opened would be when it reaches the end user; the baseball always remains in the bags to prevent any damage to the baseball. By letter dated April 10, 1992, you stated that you are willing to place a warning on the label stating "Warning, this sticker is not to be removed except by purchaser."

ISSUE:

What packaging and labeling is required on a replica baseball which for purposes of authenticity with the original baseballs is marked with the words "MADE IN U.S.A.", when the country of origin of the baseball is actually China?

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. The Court of International Trade stated in Koru North America v. United States, 701 F. Supp. 229, 12 CIT 1120 (CIT 1988), that "in ascertaining what constitutes the country of origin under the marking statute, a court must look at the sense in which the term is used in the statute, giving reference to the purpose of the particular legislation involved. The purpose of the marking statute is outlined in United States v. Frielaender & Co., 27 CCPA 297 at 302, C.A.D. 104 (1940), where the court stated that: "Congress intended 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."

Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. Section 134.41(b), Customs Regulations (19 CFR 134.41(b), mandates that the ultimate purchaser in the U.S. must be able to find the marking easily and read it without strain. Section 134.1(d), Customs Regulations, (19 CFR 134.1(d)), defines the ultimate purchaser as generally the last person in the U.S. who will receive the article in the form in which it was imported. The replica baseballs are for souvenir purposes. The ultimate purchaser is the person acquiring the replica baseball for display purposes.

In addition, 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 a 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. See HQ 708994 (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.

Similarly, 134.47, Customs Regulations (19 CFR 134.47), requires a slightly less restrictive marking. Under 134.47, when the name of a place other than the country of origin appears as part of a trademark or trade name or as part of a souvenir marking, the name of the actual country of origin must appear in close proximity to the place "or in some other conspicuous location". In other words, if the question concerns a trade name, trademark or souvenir, the country of origin marking needs only to meet the general standard of conspicuousness. In either 134.46 or 134.47, the name of the country of origin must be preceded by "Made in", "Product of ", or words of similar meaning. See HQ 734175 (February 24, 1992); HQ 734277 (December 24, 1991).

This case differs from prior cases involving the application of 19 CFR 134.46 and 134.47 because of the "MADE IN U.S.A." marking. Anaconda Sports Inc. seeks to import an exact replica. This replica contains the words "MADE IN U.S.A." already printed on the baseball to mirror the printing on the authentic baseball. Anaconda Sports Inc. argues that "MADE IN U.S.A." can not be removed from the baseball without destroying the concept of an exact copy. Further, Anaconda Sports Inc. argues that no other permanent marking may be printed on the baseball itself without the same destructive effect. Although these claims have merit, it is a basic principle that under 19 U.S.C. 1304, the country of origin must be clearly indicated. Although normally this standard is met if the country of origin is preceded by the words "made in" or "product of" in close proximity to a U.S. reference, in this case, the words "MADE IN" are already being used in the replica's printing as used on the original baseball, not to indicate the replica's true country of origin. Therefore, the replica baseball will require more than the simple "Made in" or "Product of" marking that is required under 134.46 and 134.47. See, HQ 733729 (January 2, 1991); HQ 733618 (July 26, 1990)(stating that a country's name other than the true country of origin may be placed on a soccer ball, so long as the marking "clearly indicated" the true country of origin).

Based on the unique circumstances presented in this case, we find that the permanent "MADE IN U.S.A." marking on the baseball is acceptable if an additional marking also appears which clearly indicates the actual country of origin of the baseball. In order to avoid any possible confusion resulting from the "MADE IN U.S.A." marking, we will require the ball itself to be marked with an adhesive label containing the language below. The adhesive label must be attached directly to the replica baseball and not to any plastic wrap, or other wrap, around the baseball which might be removed prior to the sale to the ultimate purchaser. The Customs district director must be satisfied that the label will not be removed except by the ultimate purchaser. Any packaging of the replica baseball will also have to contain the language below.

The adhesive label and any packaging of the replica baseball must state:

THIS ITEM IS A REPRODUCTION. ALL PRINTING ON THE REPLICA BASEBALL MATCHES THE PRINTING ON THE ORIGINAL BASEBALL AND DOES NOT INDICATE THE ACTUAL COUNTRY OF ORIGIN OF THE REPLICA BASEBALL. THIS REPLICA BASEBALL WAS ACTUALLY MADE IN CHINA.

Warning: This sticker should not be removed except by purchaser.

This adhesive label must be attached to the replica baseball directly below where the baseball reads "MADE IN U.S.A." The printing on the label must be legible, in contrasting color, and in at least comparable size to the "MADE IN U.S.A." printing. "MADE IN CHINA" must be in bold print and underlined. This adhesive label also must be attached to any packaging of the replica baseball in a permanent and conspicuous manner. In order to ensure that the sticker remains on the baseball until it reaches the ultimate purchaser, the baseball must be imported and sold in the manner proposed, i.e. in a clear sealed plastic wrap. If the packaging of the baseball anywhere contains a picture of the baseball showing the "MADE IN U.S.A." statement, the adhesive label must be placed immediately adjacent to, and on the same side as the U.S.A. statement.

HOLDING:

The "MADE IN U.S.A." marking on the above described baseballs is acceptable if the conditions set forth above are satisfied.

Sincerely,

John Durant, Director
Commercial Rulings Division

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