HQ 0734544 - Country of origin marking of desk top publishing tools including computer mice, hand-held scanners, digital camera and related software products; alternative country of origin marking; multiple countries; refer to contents label. - United States International Trade Commision Rulings

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HQ 734544

July 24, 1992
MAR-2-05 CO:R:C:V 734544 KR

CATEGORY: MARKING

Mr. Brian McGinnis
Traffic Manager
Logitech Inc.
6505 Kaiser Drive
Fremont, CA 94555

RE: Country of origin marking of desk top publishing tools including computer mice, hand-held scanners, digital camera and related software products; alternative country of origin marking; multiple countries; refer to contents label.

Dear Mr. McGinnis:

This is in response to your letter dated March 9, 1992, requesting a country of origin ruling regarding desk top publishing tools including computer mice, hand-held scanners, digital camera and related software products which may be imported from one of several countries of origin. You submitted three photocopies of the type of marking you are currently employing.

FACTS:

You state that Logitech, Inc. intends to import desk top publishing tools including computer mice, hand-held scanners, digital camera and related software products. The products are manufactured in Taiwan, Ireland, China, Japan and the United States. You state that you currently mark the individual item with the actual country of origin. You also mark the retail carton with the actual country of origin. Lastly, you state that you mark the actual country of origin on each commercial invoice used to conduct a transfer.

You are interested in changing your marking method to place multiple or alternative country of origin markings on the cartons. You wish to mark your cartons with two phrases: "Made in one of the following countries: Taiwan, Ireland, China or Japan"; or "Made in one or more of the following countries: Taiwan, Ireland, China, Japan or U.S.A.". You state that you wish to change the product's marking in order to reduce costs by allowing the boxes to be shared on a world wide basis. You state that although the carton's marking would have several countries of origin marked on them, the products themselves would have the actual country of origin marked on them. The invoices would also have the actual country of origin marked on it.

ISSUE:

Whether Logitech, Inc., may mark the retail carton with alternative countries of origin if the actual product is marked with the country of origin.

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 134.35, Customs Regulations (19 CFR 134.35), states that the manufacturer or processor in the U.S. who converts or combines the imported article into a different article having a new name, character or use will be considered the ultimate purchaser of the imported article within the contemplation of 19 U.S.C. 1304 and the article shall be excepted from marking. The outermost containers of the imported articles shall be marked.

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. The definition then gives examples of who might be the ultimate purchaser if the imported article is used in manufacture, if the imported article is sold at retail in its imported form, the purchaser at retail is the ultimate purchaser. In this situation you seek to mark the retail cartons "Made in one of the following countries Taiwan, Ireland, China or Japan". The U.S.A. may also be added to the list of countries. Generally, Customs policy is that absent other circumstances, it is not acceptable for purposes of 19 U.S.C. 1304 to mark an article with the legend "Product of ____ or ____". In C.S.D. 89-111 we ruled that certain effervescent enzymatic cleaner tablets, products of both the U.S. and West Germany, were required to be marked for retail sale with the actual country of origin of West Germany. Although Customs acknowledged that the seller could avoid expense by using the disjunctive marking, "Made in ___, or ____", Customs was not satisfied that fully accurate marking would amount to an economic prohibition, and therefore required the item to be marked with only the actual country of origin of each individual item.

In two other rulings, C.S.D. 84-50, regarding fertilizer, and C.S.D. 84-44, regarding honey, the product was a repacked blend from multiple countries, and marking of the major source countries was required. In those cases Customs did not agree that it was economically prohibitive to mark the articles with a substantial degree of accuracy.

In contrast, Customs, in C.S.D. 84-56, has allowed an exception to the rule not allowing marking in the disjunctive. In C.S.D. 84-56, Customs allowed fasteners to be marked "from one or more of the following countries...." to indicate the country of origin of fasteners, where there were many varieties from many countries. The major source countries were required to be indicated.

Another circumstance where we have allowed alternative country of origin marking, is similar to the current case. In HQ 734101 (July 9, 1991), we allowed toys sold inside plastic eggs in a vending machine to be individually marked with the actual country of origin, but since this was not visible, to have the machine marked "The Toys Contained In This Machine Are Marked With The Country Of Origin, And May Be Made In One Or More Of The Following Countries: Hong Kong Taiwan China". In that case, like the present case the items themselves are marked with the actual country of origin but the packaging contains the alternative country of origin designations. However, in the toy case, the marking with the alternative countries of origin also stated that the individual items contained the country of origin marking.

In another case, Customs ruled that an importer of automobile parts may mark the packaging "Contents Imported, See Article for Country of Origin". HQ 734491 (April 13, 1992). The same will be required here. Logitech, Inc., will have to mark the cartons not only with the possible countries of origin, but also with the instruction to inspect the item itself for the actual country of origin. In order to qualify for this type of marking, the carton must be unsealed allowing the purchaser to inspect the product prior to purchase. The marking on the product must meet the general Customs marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134.

An alternative marking method which could be used, is to list all the various possible countries of origin on the retail carton. When the retail carton is filled, the appropriate country of origin for the individual product packed can be indicated. This requires only one printed carton for all the various countries of origin, and only minimal work to inform the ultimate purchaser of the country of origin without requiring the purchaser to open the carton and inspect the product. If using this method the importer still must meet the general Customs marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134.

The proposed marking containing "U.S.A." is not addressed in this decision. The determination of marking an item as "Made in USA" is under the primary jurisdiction of the Federal Trade Commission and not this service. We, therefore, recommend that you contact the Federal Trade Commission, Division of Enforcement, located at 6th and Pennsylvania Avenue, N.W., Washington, D.C. 20580, for any views concerning marking the carton with the "USA" symbol.

HOLDING:

Logitech, Inc., may mark the cartons with multiple country of origin designations, as long as the carton also instructs the purchaser to inspect the product itself for the actual country of origin. The carton must be unsealed allowing the purchaser to remove and view the product prior to purchase. The actual country of origin marking on the product itself is assumed to meet the general Customs marking regulations of 19 U.S.C. 1304 and 19 CFR Part 134.

Sincerely,

John Durant, Director

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