HQ 0733760 - Country of origin marking of imported jeans; 19 CFR 134.47; legible; conspicuous; comparable size - United States International Trade Commision Rulings

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HQ 733760
July 8, 1991

MAR-2-05 CO:R:C:V 733760 KG

CATEGORY: MARKING

Ms. Ann M. Williams
A.N. Deringer, Inc.
30 West Service Road
Champlain, New York 12919-9703

RE: Country of origin marking of imported jeans; 19 CFR 134.47; legible; conspicuous; comparable size

Dear Ms. Williams:

This is in response to your letter of August 29, 1990, requesting a country of origin ruling on behalf of Importation Nils regarding imported jeans. Samples were enclosed for examination.

FACTS:

Your client imports jeans from Canada under two brand names, Jeans Indiana and Jeans Montana. Two pair of jeans were submitted as samples, one bearing the name "Jeans Indiana" and the other pair bearing the name "Jeans Montana."

The phrase "Jeans Indiana," or "Classic Jeans Montana SPW" appear in three locations on the outside of the Jeans Indiana jeans: (1) On a hangtag attached to the jeans; (2) On a leather patch sewn on the waistband; and (3) On a paper size tag stitched to the waistband located next to the leather patch. The hangtag contains a face of a native American with the phrase "JEANS INDIANA" in lettering about 1/4 inch in height below it and also the phrase "JEANS INDIANA" in all capital lettering about 1/2 inch in height appears next to the face. The leather patch contains the same face described above but the lettering is about 1/8 inch in height and the phrase "Jeans Indiana" appears around the face in lettering about 1/4 inch in height. The paper tag also contains the face of a native american with the phrase "JEANS INDIANA" appearing below it in lettering about 1/4 inch in height.

The phrase "Made in Fabrique Au Canada" appears on a paper tag sewn into the jeans near the zipper, about 4 inches down, in lettering that is about 1/16 inch in height.

The second sample is marked a little differently than the Jeans Indiana style. Markings appear on a leather patch, hangtag and a paper patch sewn into the outside of the jeans near the leather patch. The leather patch contains a 4-point star in the center surrounded by the phrase "Jeans Montana classic SPW" in yellow lettering that is about 1/4 inch in height. The hangtag contains the same star described above surrounded by the phrase "Classic Jeans Montana SPW" in yellow lettering about 1/4 inch in height and next to it, the phrase "Jeans Montana" appears in yellow lettering about 1/2 inch in height. The paper patch, which is about 1 1/2 inches from the leather patch, contains the star surrounded by the phrase "Classic Jeans Montana SPW" in yellow lettering about 1/8 inch in height and next to it, the phrase "Made in Canada" appears on the bottom of the tag in lettering about 1/16 inch in height.

There is a paper label sewn into the inside of the Jeans Montana jeans, near the zipper, about 4 inches down, that contains the phrase "Fabrique Au/Made in Canada" in faded lettering that is about 1/16 inch in height.

Your client has applied to the U.S. Patent and Trademark Office for U.S. registration of the phrases "Classic Jeans Montana SPW" and "Jeans Indiana". The application is pending. You asked if the jeans would be legally marked if shipped today and also if the jeans would be legally marked if shipped after the registration. Although you refer to these phrases as "trade names", since trade names cannot be registered, we assume you are claiming them as trademarks.

ISSUES:

Whether the country of origin label sewn inside the jeans near the zipper satisifes the requirements of section 304 of the Tariff Act of 1930, as amended.

Whether the references to "Jeans Montana" and "Jeans Indiana" on the outside of the jeans trigger the requirements of 19 CFR 134.46 or 19 CFR 134.47.

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 (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. Friedlaender & 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 134.46, Customs Regulations (19 CFR 134.46), requires that when the name of any city or locality in the U.S., other than the name of the country or locality in which the article was manufactured or produced, appears 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. The purpose of this section is to prevent the possibility of misleading or deceiving the ultimate purchaser of the actual origin of imported goods.

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. appear, the article shall be legibly, conspicuously, and permanently marked to indicate the name of the country of origin of the article preceded by "Made in," "Product of," or other words of similar meaning, in close proximity or in some other conspicuous location.

The distinctions between 19 CFR 134.46 and 19 CFR 134.47 are that if an article qualifies for treatment under 134.47, there is no comparable size requirement for the country of origin marking and the close proximity requirement for the country of origin marking is more loosely construed to allow for placement "in some other conspicuous location."

The first issue presented is whether the country of origin label attached inside the jeans near the zipper, as described above, satisfies the country of origin marking requirements.

Based on a ruling dated August 18, 1971, published in abstract form as T.D. 71-264(3), Customs held that trousers, slacks, jeans, and similar wearing apparel shall be marked to indicate the country of origin by means of a permanent label affixed in a conspicuous location on the garments, such as the inside of the waistband. Further, section 134.41(b), Customs Regulations (19 CFR 134.41(b), requires that the ultimate purchaser in the U.S. must be able to find the country of origin marking easily and read it without strain. In particular, Customs requires that an article which contains references to a place other than the country of origin, be conspiculously marked to insure that the ultimate purchaser will not be confused or misled by the references.

The tag sewn inside the jeans near the zipper is not attached inside the waistband as suggested by T.D. 71-264(3) or in a location which is conspicuous enough to insure that an ultimate purchaser would not be misled or confused by the other references on the garment and hangtag. Further, the lettering, which is small and very faded, is difficult to read and would not satisfy the requirements of 19 CFR 134.41(b).

The second issue presented is whether the jeans, which contain references to "Jeans Indiana," "Jeans Montana," or Classic Jeans Montana SPW" on the hangtag, the leather patch and the paper tag sewn in at the waistband trigger the requirements of 19 CFR 134.46 or 19 CFR 134.47.

Customs is currently reviewing the issue of whether or not a trade-mark must be registered in order to trigger the requirements of 19 CFR 134.47. Until Customs has resolved this issue and published its position, we will assume that 19 CFR 134.47 applies in this case.

Therefore, the issue presented is whether the two samples satisfy the provisions of 19 CFR 134.47. The "Jeans Indiana" and "Jeans Montana" samples would not satisfy the requirements of 134.47 because there are so many prominent references to "Montana" or "Indiana" on the outside of the jeans and in one sample, the country of origin marking is covered by a belt. The country of origin of the jeans must appear conspicuously on the outside of the jeans. For instance, marking the country of origin of the jeans in a conspicuous manner on the hangtag attached to the jeans would satisfy the requirements of 19 CFR 134.47.

You cited HQ 732412 (August 29, 1989), which was governed by 19 CFR 134.46, in support of your position that these jeans are properly marked. However, in HQ 732412, both the hangtag and the paper label attached to the waistband of the jeans that contained the name "Kansas" also had the legend "Made in Peru" on them. Further, the name "Kansas" was a permanent part of the design of the garment and was not merely on tags which could and probably would be torn off before the apparel was worn. Therefore, the conclusion reached in HQ 732412 is not applicable to this case.

HOLDING:

The country of origin marking inside the jeans is unacceptable; the marking is not conspicuously located, the size of the lettering is small and the lettering is very faded and therefore, difficult to read. The country of origin must appear in a conspicuous manner on the outside of the jeans as well.

Sincerely,

John Durant
Director,
Commercial Rulings Division

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