HQ 0734466 - Country of origin marking requirements for a universal joint kit with a seal which has a U.S. patent number inscribed; 19 CFR 134.46; HQ 732816; HQ 731305 - United States International Trade Commision Rulings

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HQ 734466
October 2, 1992

MAR-2-05 CO:R:C:V 734466 RSD

CATEGORY: MARKING

Ford P. Weber, Esq.
Corporate Legal Director
The Zeller Corporation
P.O. Box 278
Defiance, Ohio 43512-0278

RE: Country of origin marking requirements for a universal joint kit with a seal which has a U.S. patent number inscribed; 19 CFR 134.46; HQ 732816; HQ 731305

Dear Mr. Weber:

This is in response to your letter dated December 30, 1991, requesting a ruling on the country of origin marking requirements for a universal joint kit with a seal which has been granted a U.S. patent and will be inscribed with a U.S. patent number. Accompanying your submission was a sample of the seal. Subsequently, you submitted photographs of the universal joints showing how the seals will be attached and positioned on the universal joints.

FACTS:

The Zeller Corporation (Zeller) is a manufacturer of driveline components for the global repair (aftermarket) of transport and construction vehicles. Zeller frequently designs and engineers the universal joint repair kits and their components in the U.S. but has them manufactured in various other countries.

A universal joint is a device in a motor vehicle which allows the power generated by the engine to be transferred to the axle containing the drive wheels. It is connected to the drive shaft in a motor vehicle at one end of the engine's transmission, and at the opposite end to the axle which propels the vehicle. The universal joint basically consists of a cross and bearings.

Zeller recently received a United States patent for the design of a seal, which is a component of some universal joint repair kits it manufactures. The seal is made of a rubber-like material in the shape of a circular ring. The manufacturing of this part has been out sourced through an American broker to a plant located in Korea. Zeller was advised by the International Section of the Patent and Trademark Office, United States Commerce Department on how the patent marking should read. The recommendation was that the part be marked "U.S. Pat." followed by the patent number. At the present time the seals are imported for use in universal joint kits which are of U.S. origin. However, in the future, the seals may used in kits which have a foreign country of origin.

The photographs of the universal joint kit show that the seals are visible on the universal joint. The bearings are marked with "U.S.A." and the cross is also marked with "U.S.A." These markings are a permanently molded into the metal.

Zeller is requesting a ruling on whether the word "United States" or the initials "U.S." when used as part of a United States patent registration number on the seal would be considered misleading with respect to the country of origin of the universal joint. Zeller also requests guidance on how the universal joints kits with a U.S. patented seal should be marked in the event that Customs finds the references to the United States and the initials U.S. are not misleading.

ISSUE:

Does the reference "U.S." on a U.S. Patent registration number which will appear on a seal of a universal joint trigger the requirements of 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. 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.

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, Customs Regulations (19 CFR 134.41), the country of origin marking is considered to be conspicuous if the ultimate purchaser in the U.S. is able to find the marking easily and read it without strain.In addition, section 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 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. Customs has ruled that in order to satisfy the close proximity requirement, the country of origin marking must generally appear on the same side(s) or surface(s) in which the name of the locality other than the country of origin appears (HQ 708994, dated 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.

In T.D. 86-129, June 26, 1986, Customs determined that a U.S. patent number on footwear would trigger the requirements of 19 CFR 134.46, because whether or not a potential purchaser would be misled by such reference would depend in large part on the sophistication of the potential purchaser and the degree of scrutiny the purchaser performs to determine the country of origin of the article. The decision further indicated that a definitive rule is necessary to ensure that all ultimate purchasers are properly informed of the country of origin and to provide for uniformity of application of the country or origin marking requirements of 19 U.S.C. 1304 and 19 CFR 134.46.

In HQ 731305, November 30, 1988, C.S.D. 89-35, we indicated that the principles stated in T.D. 86-129 would also apply to other products. However, in HQ 732816, November 24, 1989, Customs determined that U.S. patent registration information and a U.S. address which appeared on the back of a display ticket on a pair of leather gloves would not invoke 19 CFR 134.46, because the U.S. references would not raise of the possibility of confusion or deception since they were not in a location directly apparent to the ultimate purchaser at the point of sale. It was pointed out that the purchaser would need to disassemble the stapled pair of gloves from the identification ticket in order to see the patent registration information and thus the U.S. reference was in location that would not influence the ultimate purchaser at the point of sale.

Based on the photographs presented, it is difficult to know exactly where the U.S. reference will appear on the seal. However, it seems that the seals will be visible and if the U.S. patent registration number is on the outside section of the seals then the U.S. reference in the U.S. patent registration number on each of seal would be seen by an ultimate purchaser of the universal joint prior to its purchase. Therefore, the in accordance with C.S.D. 89-35, the requirements of 19 CFR 134.46 would apply. Consequently, if the designation "U.S. Pat ..." appears on the visible portion of the seal, the country of origin marking must appear in close proximity, and in lettering of comparable size, preceded by "Made in," "Product of," or other words of similar meaning. The photographs of the universal joints indicate that there is a "USA" marking on the center part of the cross of the universal joint. If foreign-origin universal joint kits are used, the country of origin marking in this location would be in close proximity to the U.S. reference patent registration number on the seals.

If the U.S. patent registration number is placed on the inside section of the seals, then the U.S. reference would not be visible to the ultimate purchaser prior to purchase, and in accordance with HQ 732816, the requirements of 19 CFR 134.46 would not apply. Although the universal joint must be marked with its country of origin permanently, legibly, and in a conspicuous location, the words "Made In" or "Product of" do not have to appear.

You also inquire whether, if the country of origin of the patented seal is different than the country of origin of the product as a whole, and the seal is marked with its country of origin the product itself must also be marked with its country of origin? If the product is of foreign origin then it must be marked legibly, conspicuously, and permanently with its country of origin. The marking should be such that the ultimate purchaser understands that it refers to country of origin of the whole universal joint, while country of origin marking on the seals must only refer to the seals.

HOLDING:

The U.S. reference on the patent registration number on the seals of universal joint kits would invoke the requirement of 19 CFR 134.46, if it is on the outside section of the seals so that the ultimate purchaser can see the U.S. reference prior to purchase. The country of origin marking must be in close proximity, in a comparable size, and preceded by "Made in", "Product of", or other words of similar meaning. If the U.S. patent registration number is put on the inside portion of the seals so that the ultimate purchaser would not see it prior to purchase, the requirements of 19 CFR 134.46 would not be triggered.

Sincerely,

John Durant, Director

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