HQ 0734568 - Country of Origin Marking Donna Karan Handbags and Briefcase. - United States International Trade Commision Rulings

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HQ 734568

December 16, 1992

MAR-2-05 CO:R:C:V 734568 KR

CATEGORY: MARKING

Mr. Duncan A. Nixon
Sharretts, Paley, Carter & Blauvelt, P.C. 1707 L Street, N.W.
Washington, D.C. 20036

RE: Country of Origin Marking Donna Karan Handbags and Briefcase.

Dear Mr. Nixon:

This is in response to your letter dated March 24, 1992, and a facsimile dated July 22, 1992, on behalf of Donna Karan New York requesting a ruling concerning the proper country of origin marking on handbags and a briefcase which are manufactured in Korea and imported to the U.S. Two samples of handbags and a sample briefcase were submitted for examination.

FACTS:

One submitted handbag, item number 610309A, is a blue leather handbag measuring 10 1/2 inches x 6 1/2 inches x 10 inches. There are two outside pockets, an inside zippered compartment, a zippered top closure with brass rings on each end of the zipper and on the zipper pull, and a 25 inch leather carrying strap. On the inside front panel of the handbag is a sewn in label stating:

DKNY
Donna Karan New York

On the inside side seam of the handbag is a cloth loop label sewn on one end to the handbag printed with "MADE IN KOREA" on each side of the loop label. The inner lining of the handbag has DKNY repeatedly sewn into the lining material in matching color thread.

The second handbag, item number 610302, is a tan leather handbag measuring 3 inches x 6 inches x 5 1/2 inches. There is a snap closure and 48 inch strap attached to the handbag with two brass rings. This handbag has the same sewn in label, loop label and inner lining as the first handbag.

The briefcase, item number 610311, is made of tan leather measuring 17 inches x 5 inches x 12 inches. There is a zipper closure on top of the bag, a zippered interior pocket, two 24 inch tan leather handle straps attached to the body of the briefcase by brass rings. The briefcase has the same interior labels and lining as described above for the handbags.

You state that the sewn in label on the inside front panel of each of the items is the registered trademark for the manufacturer, Donna Karan. You submitted copies of the two trademarks registered with the U.S. Patent and Trademark Office for Donna Karan. The first, Reg. No. 1,635,537, is listed as "FOR: PANTYHOSE, TIGHTS AND SOCKS" and is described as: "CONSISTS OF THE BLOCK LETTERS 'DKNY' WITH THE WORDS 'DONNA KARAN, NEW YORK' ON RAGGED CONCENTRIC CIRCLES DESIGN WITH 'COVERINGS' ACROSS THE DIAMETER OF THE CIRCLES."

The second registered trademark, Reg. No. 1,586,768, is "FOR: HANDBAGS, CLUTCH PURSES, SHOPPING BAGS MADE OF LEATHER, POUCHES, TOTE BAGS, WEEKENDER BAGS, COSMETIC BAGS SOLD EMPTY, BACKPACKS. ATTACHES, SATCHELS, BELT BAGS, WALLETS, BUSINESS CARD CASES AND TRAVEL KITS SOLD EMPTY". The second trademark consists only of the block letters "DKNY".

ISSUE:

Whether the proposed marking on the handbags and briefcase described above satisfies the requirements of 19 U.S.C. 1304, 19 CFR 134.46, and 19 CFR ?134.47.

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 purpose of the marking statute is outlined in United States v. Friedlaender & 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.

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.

Customs Regulations 19 CFR 134.47, requires a slightly less restrictive marking than 134.46 when the location name other than the country of origin appears as part of a trademark. Under 134.47, 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, if the question concerns a trade name or trademark, the country of origin marking needs only to meet the general standard of conspicuousness. Under either 134.46 or ?134.47, the name of the country of origin must be preceded by "Made in", "Product of", or words of similar meaning. See HQ 734175 (February 24, 1992); HQ 734277 (December 24, 1991).

The handbags and briefcase have the marking "DKNY" on the sewn in label and in many places in the pattern of the interior lining. This symbol is a registered trademark. Further, while the letters might stand for Donna Karan New York, in the format in which they appear, the four letters together "DKNY" do not refer to a U.S. geographic location other than the country of origin of the products. Therefore, "DKNY" does not trigger the requirements of either 19 CFR 134.46 or ?134.47.

However, underneath "DKNY" the sewn in label also states "Donna Karan New York". In reviewing the two trademarks registered with the U.S. Patent and Trademark Office, we find that only one applies to handbags and briefcases. The other registered trademark applies to pantyhose tights and socks. Further, the inapplicable trademark has "New York" appearing in a different format than it appears on the handbags and briefcase.

The applicable trademark, Reg. No. 1,586,768, consists only of "DKNY". Therefore, the requirements of 19 CFR 134.47 do not apply in this situation as "New York" is not part of the trademark. Therefore the more stringent requirements of 19 CFR 134.46 apply. See HQ 734293 (October 24, 1991).

In this ruling request, the handbags and briefcase have a sewn in label in the inside side seam which states "MADE IN KOREA". Customs held in HQ 732691 (May 8, 1990), that a fabric label sewn into the side seam of the inside of a tote bag and handbag is an acceptable location for a country of origin marking to be located as long as the label can be easily found by the ultimate purchaser. See also HQ 732810 (January 26, 1990) (allowing a sewn in label marked on two sides with the country of origin as long as the label was not sewn into the side seam too deep inside the bag). We find that the three samples in this case have an easily found label sewn into the side seam of each of the samples. Therefore, we find that this satisfies the requirements of 19 CFR 134.46.

HOLDING:

The country of origin marking appearing on the handbags and the briefcase is sufficient to meet the requirements of 19 U.S.C. 1304, 19 CFR ?134.46.

Sincerely,

John Durant, Director

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