HQ 0734449 - Country of origin marking of combs imported from France; conspicuous; trademark; close proximity; U.S. locality; HQ 733940 - United States International Trade Commision Rulings

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HQ 734449

January 4, 1993

Mar-2-05 CO:R:C:V 734449 AT

CATEGORY: MARKING

Thomas C. Fitzhugh III, Esq.
Fitzhugh & Associates, P.C.
2095 NCNB Center
Houston, Texas 77002

RE: Country of origin marking of combs imported from France; conspicuous; trademark; close proximity; U.S. locality; HQ 733940

Dear Mr. Fitzhugh:

This is in response to your letter dated December 20, 1991, on behalf of Amercian Novelties Corporation (American Novelties), and Tournier Billon, S.A. (Tournier Billon), requesting a ruling on the country of origin marking of hair combs imported from France. Samples with the proposed markings were submitted with your letter. We regret the delay in responding.

FACTS:

You state that American Novelties and Tournier Billon import hair combs from France. All the sample combs are marked with the trademark "Florence Billon Paris" in gold lettering measuring approximately 7 point (a point is a unit of type measurement equal to 0.01384 inch or nearly 1/72 in., and all type sizes are multiples of this unit). On the same side near the teeth of the comb the words "Made in France" are printed in non-contrasting lettering approximately 4.5 point. You have inquired as to whether the proposed marking on the submitted samples satisfies the marking requirements provided in 19 CFR 134.11, that the country of origin be marked in a conspicuous place as legibly, indelibly and permanently as possible.

ISSUE:

Whether the country of origin marking on the sample combs as described above satisfies the requirements of 19 U.S.C. 1304 and 19 CFR Part 134.
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, 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. Section 134.1(d), Customs Regulations (19 CFR 134.1(d)) defines ultimate purchaser as "generally the last person in the U.S. who will receive the article in the form in which it was imported."

In determining whether the marking is acceptable, Customs will take into account the presence of words or symbols on an article which may mislead the ultimate purchaser as to the country of origin. Consequently, if the words "United States," or "America," the letters "U.S.A.," any variation of such words or letters, or the name of any city or locality other than the country of origin appear on the imported article, special marking requirements are triggered."

The marking issue raised in this case involves the application of two related provisions of the marking regulations, 19 CFR 134.46 and 19 CFR 134.47. The application of the special marking requirements set forth in these provisions is triggered by the presence of the word "Paris" printed on the either the side or handle of the comb.

Both provisions serve the same purpose of preventing ultimate purchasers from being misled or deceived when the name of a country or place other than the country of origin appears on an imported article or its container. The critical difference between the two provisions is that section 134.46 requires that the name of the actual country of origin appear "in close proximity" to the U.S. reference and in lettering of at least comparable size. By contrast, 134.47 requires less, providing that 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, the country of origin marking needs only to meet the general standard of conspicuousness. In either case, the name of the country of origin must be preceded by "Made in," "Product of," or words of similar meaning.

As applied here, due to the fact that "Florence Billon Paris" is a registered trademark, the less stringent requirements of 19 CFR 134.47 apply. Accordingly, the actual country of origin of the combs must satisfy the general standards of conspicuousness and must be preceded by the words "Made in", "Product of", or words of similar meaning.

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), Customs set forth some factors to be considered in determining if the country of origin marking on imported pens was conspicuous within the meaning of 19 CFR 134.41 and 19 U.S.C. 1304. Customs stated that among the factors to be considered was the size of the marking, the location of the marking, whether the marking stands out, and the legibility of the marking. Customs also stated that the size of the marking should be large enough so that the ultimate purchaser can easily see the marking without strain. The location of the marking should be in a place where the ultimate purchaser could expect to find the marking or where he/she could easily notice it from a casual 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 is determined by the clarity of the letters and whether the ultimate purchaser could read the letters of the marking without strain. Furthermore, Customs said that 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 applying these factors to the sample combs, we first find that the words "Made in France" which appear near the teeth of the combs are easily noticeable from a casual inspection of the comb. Although the country of origin marking is not in a contrasting color, nevertheless, it can be easily seen since the size of the lettering is 4.5 point. Furthermore, the marking is clear and can be easily read without strain. Considering the above factors together, we find that the country of origin marking on the sample combs satisfies the conspicuous require- ments of 19 CFR 134.41 and 19 U.S.C. 1304.

HOLDING:

The proposed country of origin marking on the submitted sample combs as described above, satisfies the marking require- ments of 19 U.S.C. 1304 and section 19 CFR 134.47.

Sincerely,

John Durant, Director

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