HQ 0734485 - Country of origin marking of socket and spanner tool sets; 19 CFR 134.46; 19 CFR 134.32(d); conspicuous. - United States International Trade Commision Rulings

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HQ 734485

July 17, 1992

MAR-2-05 CO:R:C:V 734485 KR

CATEGORY: MARKING

Mr. Michael Mingione
Unitec Division of Dejil Industries Inc.
33 Plainfield Ave.
Bedford Hills, NY 10507

RE: Country of origin marking of socket and spanner tool sets; 19 CFR 134.46; 19 CFR 134.32(d); conspicuous.

Dear Mr. Mingione:

This is in response to Tronix-Two International, Inc.'s letters dated January 17, 1992, and April 1, 1992, requesting a country of origin ruling on Metrinch Socket sets which you wish to import from Taiwan. Five samples of different tool sets and a sales brochure were submitted for examination.

FACTS:

The tool sets all are made in Taiwan. The tool sets submitted were a twelve piece 3/8 inch square drive standard socket set without the rachet handle (no catalogue number), a ten piece combination spanner set catalogue number MET 0110, a seventeen piece 1/2 inch drive socket set without the rachet handle (no catalogue number), a twenty five piece 1/4 inch and 3/8 inch drive socket set catalogue number MET 0300, and a twenty five piece 3/8 inch drive socket set catalogue number MET 0500. The twelve piece socket set is packaged in a clear plastic blister pack. The other four tool sets are packaged in cardboard boxes and shrink wrapped in clear plastic.

The back panel of each of the tool sets contains a product description which contains the language "meet the torque requirements of British Standards BS 4006, DIN 899 and US Federal GGG-W-641E (Sockets) and BS192, BS 3555, DIN 899, and GGG-W-- 636d (Spanners). German GS Approved." The front panel of each of the tool sets except the ten piece spanner set contains the words "German GS Approved". The twelve piece socket set is visible through the clear plastic blister pack. The pieces are individually die stamped with the word "TAIWAN". On the back panel of the twelve piece socket set the following words appear:

Metrinch is a trademark of Surelab USA made in Taiwan.
On the end flap of the ten piece spanner set the words "Metrinch is a Trademark of Surelab U.S.A." appears. "Made in Taiwan" is placed on the side panel on the UPC code box with an adhesive backed label. The seventeen piece socket set has "Metrinch is a Trademark of Surelab U.S.A." on the two side panels. On the back panel "MADE IN TAIWAN" is printed directly below the product description box. On the front panel of each of the boxed socket sets (not the blister pack or the spanner set) the words "Meets DIN, BS, and US Federal Standards for torque and hardness."

The two, twenty five piece sets each contains the language "Metrinch is a Trademark of Surelab U.S.A." on the two side panels. The words "MADE IN TAIWAN" appear on one end flap on the UPC code box with an adhesive backed label.

You state that you do not want to individually mark the country of origin on each piece. Instead, you want to mark the country of origin only on the packaging of the products.

ISSUE:

Whether the proposed marking on the packaging described above satisfies the requirements of 19 U.S.C. 1304.

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 1120 (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. Frielaender & 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 134.41(b), Customs Regulations (19 CFR 134.41(b), mandates that the ultimate purchaser in the U.S. must be able to find the marking easily and read it without strain.

Section 134.1(d), Customs Regulations, (19 CFR 134.1(d)), defines the 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 this instance, the ultimate purchaser of the tools is the retail consumer because the retail consumer is the last person in the U.S. to receive the imported merchandise (tools) in the form in which it is imported (in shrink wrapped cartons).

An article is excepted from marking under 19 U.S.C. 1304 (a)(3)(D) and 19 CFR 134.32(d), if the marking of a container of such article will reasonably indicate the origin of such article. This exception is applicable if Customs is satisfied that the marked container in which the article is imported will reach the ultimate purchaser in all reasonably foreseeable circumstances in its original, unopened and properly marked container. C.S.D. 89- 78. In C.S.D. 89-113, Customs held that blister packaging was an acceptable form of packaging within the parameters of this exception to the marking requirements of 19 CFR 134.32(d), since blister packaging is obviously intended to remain with the article through its retail sale to the ultimate purchaser. See HQ 734331 (February 10, 1992).

The marking of the packaging in lieu of the tools themselves is acceptable only if Customs is satisfied that the ultimate purchaser will receive them in their marked carton packaging, and the marking on the packaging is satisfactory. 19 U.S.C. 1304, requires that the country of origin marking be "conspicuous." 19 CFR 134.41(b) states that the ultimate purchaser "must be able to find the marking easily and read it without strain." In addition 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 a 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 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 (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.

The twelve piece set in blister pack has the words "German GS Approved" on the front panel. This appears in approximately 9 point print. (A point is approximately .01384 inch or 1/72 of an inch). To comply with 19 CFR 134.46, the words "Made in Taiwan", or a similar phrase, must appear on the front panel in comparable size print. The back panel of the tool set names countries other than the country of origin in two places. First, it states "Metrinch is a trademark of Surelab USA" and directly below this in equal print "made in Taiwan." Both of these appear in 9 point print. In a box approximately 2 3/4 inches away in approximately 5 point print appears the words "meet the torque requirements of British Standards BS 4006, DIN 899 and US Federal GGG-W-641E (Sockets) and BS192, BS 3555, DIN 899, and GGG-W-- 636d (Spanners). German GS Approved." The country of origin marking on the back panel is sufficient to meet the requirements of 19 CFR 134.46 for both the trademark phrase and the boxed statement also appearing on the back panel.

The ten piece spanner set contains the country of origin marking on the UPC code box on the side panel of the box. We find this is not a conspicuous marking. The ultimate purchaser can not easily discover the country of origin marking in the UPC code box in the same color (black and white) as the boxes bars and numbers and in comparable size print to the numbers. Further, the average consumer does not take a close look at the UPC code in order to distinguish the different print there, it is a computer stock and price tool. Further, one side panel states the trademark language discussed above in approximately 9 point print. Therefore, 19 CFR 134.46 requires the country of origin also to appear in comparable size letters on the side panel in close proximity. The back panel of the box contains the boxed language discussed above in approximately 8 point print. This also falls within the requirements of 19 CFR 134.46 and requires the country of origin to be placed on the back of the box as well. Although we find that the marking on the UPC code box is not conspicuous, a conspicuous marking on the back of the box will suffice to replace that marking.

The seventeen piece socket set has the country of origin placed on the back panel in large letters with an adhesive label attached under the shrink wrap in approximately 13 point print. It is placed below the boxed language discussed above which is approximately 5 point print. The carton also contains the trademark language on the two side panels in approximately 5 point print. On the front panel in approximately 9 point print, the box states "Meets DIN, BS, and US Federal Standards for torque and hardness. German GS Approved." The back panel's marking is conspicuous within the meaning of 19 CFR 134.41(b) and satisfies the requirements of 19 CFR 134.46. However, the front panel and side panels must be separately marked with the country of origin pursuant to 19 CFR 134.46. The country of origin marking must be placed with comparable sized print in close proximity to the listed information and must appear on the front panel.

The two, twenty five piece socket sets have the country of origin marking on the UPC code box in approximately ten point print, by adhesive label on an end panel. We find that this does not meet the conspicuous requirement or the requirements of 19 CFR 134.46. The ultimate purchaser can not easily discover the country of origin marking in the UPC code box in the same color (black and white) as the boxes bars and numbers and in comparable size print to the numbers. Further, the average consumer does not take a close look at the UPC code in order to distinguish the different print there, it is a computer stock and price tool. Both twenty five piece socket set boxes contain the same front panel information as the seventeen piece set discussed above, but in approximately 13 point print for the 3/8 inch socket set, and approximately 9 point print for the 1/4 inch socket set. The side panels contain the trademark language discussed above in approximately ten point print for the 3/8 inch set, and approximately 9 point print for the 1/4 inch set, and the back panel has the boxed information discussed above in approximately ten point print for the 3/8 inch set and approximately 9 point print for the 1/4 inch set. We hold that these boxes must match the requirements set forth for the seventeen piece set discussed above. This includes the placement of the country of origin on the back panel, side panels, and front panel.

HOLDING:

The Metrinch tool sets are excepted from individual marking under 19 U.S.C. 1304(a)(3)(D) and 19 CFR 134.32(d). The marking of the packaging of the tool sets with the country of origin is sufficient. However, the packaging must be marked as discussed above in order to comply with 19 U.S.C. 1304 and 19 CFR Part 134.

Sincerely,

John Durant, Director
Commercial Rulings Division

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