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HQ 734636

August 6, 1992

MAR-2-05 CO:R:C:V 734636 ER

CATEGORY: MARKING

Ms. Janice E. Baugher
Ron Jon Surf Shop
3850 S. Banana River Blvd.
Cocoa Beach, Florida 32931

RE: Country of Origin Marking of Imported Shorts, Swim Trunks, Shirts, T-Shirts, Jackets, Hats and Headwear; Label; Location; Conspicuous; 19 U.S.C. 1304; 19 CFR 134.46; 19 CFR 134.47.

Dear Ms. Baugher:

This is in response to your letter of April 22, 1992, regarding the country of origin marking requirements for imported shorts, swim trunks, shirts, t-shirts, jackets, hats and headwear. No samples were submitted.

FACTS:

Ron Jon plans to import shorts, swim trunks, shirts, t-shirts, jackets, hats and other headwear from various countries other than Australia. Included in your submission were printouts of two of the labels which you want to put on your merchandise. One label, measuring 3.5" x 3.5", reads: "Australia Ron Jon Surf Shop Down Under" and features an outline of the shape of the country of Australia. The other label is smaller, measuring approximately 1.5" x 1.5", and reads: "Ron Jon Surf Wear 'One of a Kind'". You state that these logos are trademarks registered in both the U.S. and Australia. However, it is not entirely clear from your submission if the word "Australia" is definitively part of the registered trademark. No description, other than size (1.5" x 1.5"), was provided of the country of origin label.

On the shorts and swim trunks you want to place both the smaller label and a country of origin label inside the waistband area as well as a larger label on the left front leg. On the shirts, t-shirts and jackets you want to place both the smaller label and a country of origin label in the center back inside collar area as well as a larger label on the left front chest. On the hats and headwear you want to place both a smaller label and a country of origin label inside the headband area as well as a larger label on the outside center of the front of the hat.

No samples of the merchandise, with or without labels attached, were submitted.

ISSUE:

Whether the proposed manner of marking the imported merchandise satisfies the country of origin marking 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 (or its container) imported into the United States shall be marked in a conspicuous place as legibly, indelibly and permanently as the nature of the article (or its container) will permit, in such a manner as to indicate to the ultimate purchaser in the United States the English name of the country of the article. Part 134, Customs Regulations (19 CFR 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304.

The primary purpose of the country of origin marking statute 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, C.A.D. 104 (1940). 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 is 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" generally as the last person in the United States who will receive the article in the form in which it was imported.

Relevant to your inquiry is whether the word "Australia" appearing on the larger label is potentially misleading to the ultimate purchaser as to the actual country of origin. In cases where a reference to a locality other than the country of origin appears on imported merchandise special marking requirements set forth in sections 134.46 and 134.47, Customs Regulations (19 CFR 134.46 and 19 CFR 134.47) may be triggered. The purpose of both provisions is the same, namely to prevent the ultimate purchaser from being misled or deceived when the name of a country or place other than the country of origin appears on an imported article or its container. The critical difference between the two provisions is that section 134.46, Customs Regulations (19 CFR 134.46) requires that the name of the actual country of origin appear "in close proximity" to such words and in lettering of at least comparable size. By contrast, section 134.47, Customs Regulations (19 CFR 134.47) is less stringent, providing that when as part of a trade name, trademark or souvenir mark, the name of a location other than the country of origin appears, the name of the actual country of origin must appear in close proximity or "in some other conspicuous location". In other words, the latter provision triggers only a general standard of conspicuousness. In HQ 722064 (August 3, 1983), Customs ruled that 19 CFR 134.47 would apply only if the word "Paris" was part of the registered trade name. Otherwise, 19 CFR 134.46 would be applicable. In the instant case, as set forth in the facts, it is unclear if "Australia" is part of the registered trademark. If it is, and if the special marking requirements are triggered, then 19 CFR 134.47 would apply. In either case, the name of the country of origin must be preceded by "Made in", "Product of", or other similar words.

However, Customs has often distinguished those special cases where reference to a country or a locality other than the country of origin on an imported article (or its container) is found unlikely to confuse the ultimate purchaser as to the country of origin of the article. For example, in HQ 723604 (November 3, 1983) and HQ 712013 (January 16, 1980), Customs determined that the letters "USA" displayed on imported men's bikini-style swimming trunks did not trigger the requirements of 19 CFR 134.46 because such marking was used as a symbol or decoration and would not be reasonably construed as indicating the country of origin of the article on which it appeared. In HQ 733259 (August 3, 1990), patches naming locations other than the country of origin and sewn onto the front of a child's knit top were found to be decorative and an integral part of the design; since the garment was conspicuously marked in the center of the neck by means of a sewn-in label in satisfaction of the requirements of 19 U.S.C. 1304, the requirements of 19 CFR 134.46 were not triggered. In HQ 733695 (January 15, 1991), "Bonjour Paris" on the rivets of blue jeans that were conspicuously marked by means of a fabric label sewn into the waistband of the jeans did not trigger the requirements of 19 CFR 134.46, and no additional marking was necessary.

Similarly here, Customs finds that the word "Australia" appears as part of the design of the wearing apparel and is unlikely to lead the ultimate purchaser to the erroneous conclusion that the merchandise is made in Australia. Therefore, so long as the imported merchandise is legibly, permanently and conspicuously marked with country of origin in the proper location, the requirements of 19 U.S.C. 1304 will be satisfied.

As no samples of the merchandise were submitted for our inspection, we are unable to fully determine whether the means of marking satisfies the location, degree of permanence and conspicuousness requirements. From your description it is probable that the proposed means of marking is adequate. Without actual samples, however, we cannot affirmatively rule on the matter. Ordinarily, the requisite location of the country of origin label for shirts, t-shirts, jackets and the like is on the inside center of the neck, midway between the shoulder seams or in that immediate area. See T.D. 54640(6). Trousers, slacks, jeans and similar wearing apparel must be marked by means of a permanent label affixed in a conspicuous location on the garment, such as the inside of the waistband. See T.D. 71-264(3). Marking headwear on the inside of the crown with country of origin is a satisfactory location. See HQ 732916 (January 26, 1990).

HOLDING:

The word "Australia" in the logo "Australia Ron Jon Surf Shop Down Under" is part of the design of the shorts, swim trunks, shirts, t-shirts, jackets, hats and other headwear imported from countries other than Australia. As such, it is not likely to confuse the ultimate purchaser as to the country of origin of the merchandise. Accordingly, the special marking requirements of 19 CFR 134.46 or 19 CFR 134.47 are not triggered. If the article is marked in a conspicuous location and in a manner sufficiently permanent to withstand ordinary handling to the point of sale to the ultimate purchaser, the requirements of 19 U.S.C. 1304 will be satisfied.

Sincerely,

John Durant, Director
Commercial Rulings Division

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