HQ 0734523 - Country of origin marking for a fence system, conspicuous, legible; 19 CFR 134.41 - United States International Trade Commision Rulings

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HQ 734523

July 24, 1992

MAR-2-05 CO:R:C:V 734523 RSD

CATEGORY: MARKING

Mr. Francois Germain
General Manager
Omega Fence Systems
3000 Francis Hughes Street
Laval, Quebec H7L 3J5

RE: Country of origin marking for a fence system, conspicuous, legible; 19 CFR 134.41

Dear Mr. Germain:

This is in response to your letter dated February 25, 1992, requesting a ruling on the country of origin marking requirements for an imported fence system. Accompanying your ruling request were copies of drawings of components of the fence system. In a subsequent submission dated June 29, 1992, we received promotional brochures concerning the fence and a sample of a cap which will be attached to the posts of the fence.

FACTS:

Omega Systems T is a Canadian company that is planning to export a fence system to the U.S. The system is composed of a welded steel mesh fence section (6 gauge), a cold rolled 16 gauge steel post, plastic cap, and plastic tensioning device. All these pieces must be used together to install the fence system, and they are all made in Canada.

You claim that it is difficult to identify each piece without generating major cost or aesthetic problems. The post is produced in 30' lengths and is then cut to fit specific market needs (4', 5', 7', or 8'). You have also indicated that the fence is bought from and generally installed by a professional fence installer. Every shipment of fences will always have the same number of caps and posts; the first being a complement to the second. The sample plastic cap is black. The writing is put on the cap by mold injection, which means it is in a non- contrasting color. The word "OMEGA" is above the greek letter on top of the top side of the cap. The country name "CANADA" is on bottom of the top side of the cap in about 9 point type.

ISSUE:

Is the country of origin marking for a fence system on the cap of each post sufficiently legible and conspicuous to satisfy the requirements for 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 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 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 cap, we first find that the size of the marking, of approximately 1/8 inch or 9 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 cap is in the same style as the marking on the cap. The marking on the cap on each fence post, is probably not the most conspicuous location, but is nevertheless in a location where the ultimate purchaser would readily notice it from a casual inspection of the article. The country of origin marking will appear several different times at regular intervals on these caps because each fence will come with several posts. Significantly, we note that in each fence unit the caps and the posts must be used together. We are also aware that to put the marking in another location could be very difficult, would harm the aesthetic appearance of the fence, and may not be any easier to find and read. In view of the size, location, and the clearness of the letters of the marking for the country of origin marking for the fence satisfies the requirements of 19 CFR 134.41 and 19 U.S.C. 1304.

HOLDING:

The country of origin marking on the sample caps on top of each post for a fence system satisfies the requirements of 19 CFR 134.41 and 19 U.S.C. 1304.

Sincerely,

John Durant, Director

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