HQ 0734231 - Country of origin marking for a mechanical lead pencil, conspicuous, legible; 19 CFR 134.41; HQ 733940 - United States International Trade Commision Rulings

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HQ 734231

November 4, 1991

MAR-2-05 CO:R:C:V 734231 RSD

CATEGORY: MARKING

Mr. Hagemu Matsuike
Director and Merchandise Distribution Manager Pentel Of America, LTD.
2805 Columbia Street
Torrance, California 90509

RE: Country of origin marking for a mechanical lead pencil, conspicuous, legible; 19 CFR 134.41; HQ 733940

Dear Mr. Matsuike:

This is in response to your request for a binding ruling on the sufficiency of the country of origin marking for an imported mechanical lead pencil. We have received a sample of the lead pencil for our consideration.

FACTS:

The sample mechanical lead pencil is known as pencil A129 and is made in Japan. The pencil has a plastic body with a reflective silver metal clip. The lead is retracted by twisting the top of the pencil. The country of origin marking, "JAPAN", is on the top circular part of the metal clip in etched or engraved capital letters of about 1/16 of an inch or approximately 4.5 point type (a point is a unit of type measurement equal to .01284 inches or nearly 1/72 in. and all type sizes are multiples of this unit). The marking is about the same size as the other writing on the clip including the model number, "A129" and the name "Pentel". Although the country of origin marking is in non-contrasting etched or engraved letters against the silver reflective colored metal clip, the letters are nevertheless clear and distinct. You indicate in your letter that pencil model numbers A125 and A127 are the same pencils as the sample pencil A129 except that the lead sizes are different.

ISSUE:

Is the country marking on the sample mechanical lead pencil sufficiently legible and conspicuous to satisfy the requirements of the country of origin marking law?

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 (1940). C.A.D. 104 (1940).

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(b), Customs Regulations (19 CFR 134.41(b)), the country of origin marking is considered conspicuous if the ultimate purchaser in the U.S, is able to find the marking easily and read it without strain.

In HQ 733940, October 24, 1991, involving the country of marking of pens, we indicated that there are certain factors that need to be considered in determining if the country of origin marking on an article is conspicuous within the meaning of 19 CFR 134.41 and 19 U.S.C. 1304. Among the factors that should be considered is the size of the marking, the location of the marking, whether the marking stands out, and the legibility of the marking. The size of the marking should be large enough so that the ultimate purchasers can easily see the marking without strain. The location of the marking should be in a place on the pen where the ultimate purchaser could expect to find the marking or where he/she could easily notice it from a causal inspection. Whether the marking stands out is dependent on where it appears in relationship to other print on the article and whether it is in contrasting letters to the background. The legibility of the marking concerns the clarity of the letters and whether the ultimate purchaser could read the letters of the marking without strain. No single factor should be considered conclusive by itself in determining whether a marking meets the conspicuous requirement of 19 CFR 134.41 and 19 U.S.C 1304. Instead, it is the combination of these factors which determines whether the marking is acceptable. In some cases, a marking may be unacceptable even when it is in a large size because the letters are too hard to read or it is in a location where it would not be easily noticed. In other cases, even if the marking is small, the use of contrasting colors, which make the letters particularly stand out, could compensate to make the marking acceptable.
In applying these factors to the sample pencil, we first find that the size of the marking, of approximately 1/16 of an inch or 4.5 point type, is large enough to be read without strain. The country of origin marking, although not in a contrasting color, is nevertheless clear and distinct and in letters that can be read without great difficulty. Therefore, the marking satisfies the standards for legibility. In addition, all other writing on the pencil is in the same style engraved print on the metal clip as the country of origin marking. The clip of the pencil is a location where the ultimate purchaser would expect to find the country of origin marking or would readily notice it from a causal inspection of the article. The reflective background against which the country of origin marking appears, is more than compensated by the size, location, and the clearness of the letters of the marking. Therefore, the country of origin marking on the sample mechanical pencil satisfies the requirements of 19 CFR 134.41 and 19 U.S.C. 1304. However, we cannot rule on the adequacy of the country of origin marking of any other pencil without seeing a sample.

HOLDING:

The country of origin marking on the sample mechanical lead pencil A129 satisfies the requirements of 19 CFR 134.41 and 19 U.S.C. 1304.

Sincerely,

John Durant, Director

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