HQ 0734034 - IA 14/91; Country of Origin Marking - Instant Coffee; 19 CFR 134.46; 19 CFR 134.47; - United States International Trade Commision Rulings

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HQ 734034
August 2, 1991

MAR-2-05 CO:R:C:V 734034 NL

CATEGORY: MARKING

Disrict Director
U.S. Customs Service
477 Michigan Avenue
Detroit, MI 48266

RE: IA 14/91; Country of Origin Marking - Instant Coffee; 19 CFR 134.46; 19 CFR 134.47;

Dear Sir:

This is in response to your memorandum dated February 28, 1991, requesting internal advice concerning the labels on certain instant coffee. The Chief, National Import Specialist Branch 1 has offered additional comments and designated the file as IA 14/91. The views of the importer, Community Coffee Company, Inc., have also been received through counsel. Samples of the plastic jars and labels have been submitted for review.

FACTS:

Community Coffee imports instant coffee which is processed and packaged in Canada into retail plastic jars bearing the "Community" brand. The instant coffee is made from beans grown, roasted, and partly processed in Brazil and Columbia. On the front of the each jar appear the words, "New Orleans Blend Instant Coffee and Chicory". The name "New Orleans Blend" is registered as a trademark in the State of Louisiana. On one side of the jar appear the words, "New Orleans Blend Instant Coffee / A smooth, full-bodied blend of the world's finest coffees, including Brazil and Colombia, with chicory from France / Distributed by Community Coffee Company, Inc. Baton Rouge, LA 70686". On the other side of the jar the consumer is invited to direct questions to a toll-free number. Callers from outside Louisiana are given a separate number to call.

It is your position that the requirements of 19 CFR 134.46 are applicable, such that the names "Brazil", "Colombia", and "France" must appear in close proximity to, and in lettering of comparable size, to the name "New Orleans" as it appears in the trade name. The need for a strict compliance with the requirements of 19 CFR 134.46 is enhanced, in your view, by the presence of the reference to "Baton Rouge" on the side panel, which could lead the ultimate purchaser to believe the article is of U.S. origin.

The Chief, National Import Specialist Branch 1, New York Seaport, agrees that the requirements of 19 CFR 134.46 are triggered by the presence of the name "New Orleans Blend" on the front of the jar. That official finds that the origin of the coffee is not indicated conspicuously, or in close proximity or lettering of comparable size to the name "New Orleans Blend". It is his view that the countries of origin should be indicated on the front panel of the jar.

The importer argues that the applicable provision is 19 CFR 134.47, which provides that if, as part of a trademark or trade name, there is a reference to a location other than the country of origin, the name of the country of origin must appear in close proximity to such reference or in some other conspicuous location, preceded by "made in", "product of", or other similar words. In this case, the names of the foreign countries are not preceded by words such as "made in" or "product of". It is submitted that the origin indication satisfies the 19 CFR 134.46 requirement of "close proximity" (albeit on a different side of the container), and that in any event the marking is in a conspicuous location by virtue of the size of the type and placement on the label.

For purposes of this ruling it is assumed that Brazil and Colombia are the countries of origin of the instant coffee within the meaning of 19 U.S.C. 1304 and 19 CFR 134.1.

ISSUES:

1) Is the marking conspicuous within the meaning of 19 U.S.C. 1304, Part 134, Customs Regulations, and in particular, 19 CFR 134.47?

2) Assuming this threshold is satisfied, is there an additional requirement that the marking be in "close proximity" to the references to "New Orleans" and "Louisiana" as required by 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.

Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. Two provisions in the regulations address the situation in which an article or its container bears a reference to a country or locality other than the country of origin. 19 CFR 134.46 provides that in any case in which such a reference appears, the name of the country of origin shall appear, legibly and permanently, in close proximity to the reference and in lettering of at least comparable size, and preceded by "Made in", "Product of", or other words of similar meaning. 19 CFR 134.47 applies when the name of a country or locality other than the country of origin appears as part of a trademark, trade name, or souvenir marking. In such cases, the marking of the country of origin must appear either in close proximity to the name in the mark "or in some other conspicuous location". Lettering of at least comparable size is not specifically required.

With respect to the imported instant coffee, both provisions are applicable. The presence on the side panel of the jar of the words "Distributed by Community Coffee Company, Inc. Baton Rouge, LA" requires that, pursuant to 19 CFR 134.46, the names of the countries of origin of the coffee appear in "close proximity" to the name "Baton Rouge, LA". In the case of packaged articles, Customs has generally ruled that "close proximity" means on the same side or surface of of the package on which appears the triggering name. See, HRL 708994 (April 24, 1978). With respect to the jar, this requirement is satisfied. In addition, the requirement that the lettering of the name of the country of origin appear in lettering of at least comparable size is satisfied by the lettering on this label.

The Louisiana-registered trademark "New Orleans Blend" appears on the same side panel, and thus satisfies the "close proximity" requirement of 19 CFR 134.46. The same name appears on the front panel in larger lettering. However, insofar as 19 CFR 134.47 does not require lettering of comparable size or "close proximity" for geographic references which appear as parts of trademarks or trade names, but merely that the country of origin be in a conspicuous location, the issue is whether it is conspicuous for the country of origin to appear on a side panel of the jar. In our opinion, the location is acceptable, in that the marking may be found easily and read without strain. See, 19 CFR 134.41(b).

The label does not, however, satisfy the requirement set forth in both 19 CFR 134.46 and 19 CFR 134.47 that the reference to an article's country of origin be preceded by the words "Made In", "Product of", or words to similar effect. It is the opinion of this office that the phrase "blend of the world's finest coffees, including Brazil and Colombia, with chicory from France" does not provide the ultimate purchaser with a clear indication of the origin of the article. The references to blending, and the term "including", create considerable ambiguity with respect to the countries of origin of the product. The possibility is left open that the article may contain may contain substantial amounts of coffee from locations other than Brazil and Colombia.

Notwithstanding this deficiency, we do not require at this time that the label be corrected. Later this year Customs intends to initiate a notice and comment proceeding to consider the country of origin marking of coffee, including the amount of processing which will effect a change in the country of origin of a coffee product, e.g., the processing of soluble coffee into agglomerated instant coffee, and the processing of coffee beans by roasting. In view of this impending proceeding, we do not object to the current use of this label, provided the product does not include coffee from countries other than Brazil and Colombia.

It is noted that the opposite side panel refers to the name "Louisiana" in connection with a toll-free number which purchasers are invited to use for questions and comments and issues arising under the product's unconditional guarantee. In previous rulings we have found that such references do not trigger the requirements of 19 CFR 134.46 (assuming the article is otherwise properly marked), in that there is no likelihood that such a reference will mislead or deceive the ultimate purchaser as to the origin of the article. See, HQ 732816 (November 24, 1989)(U.S. address for warranty information does not trigger the "close proximity" and lettering of comparable size requirements of 19 CFR 134.46). We find that the same rationale applies to the reference to "Louisiana" in the instant context.

HOLDING:

The location of the country of origin marking on the side of the coffee jar whose front bears the trademarked name "New Orleans blend" satisfies the requirements of 19 CFR 134.47. The location of the country of origin marking satisfies the requirements of 19 CFR 134.46 with respect to the other references on the jar to places other than the country of origin. The label does not satisfy the requirements of both 19 CFR 134.46 and 19 CFR 134.47 with respect to the wording of the indication of origin. The words "Made In", or "Product of" or words to similar effect do not appear. For the reasons set forth above, the importer is not required to correct the deficiency at this time.

Sincerely,

John Durant
Director, Commercial

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