HQ 0734707 - Country of origin marking of leather belts with a trademark of "Ferrini Italia" which is imported from South Africa; 19 CFR 134.47; application for trademark. - United States International Trade Commision Rulings

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HQ 734707

June 21, 1993

MAR-2-05 CO:R:C:V 734707 AT

CATEGORY: MARKING

Georgia B. Morris, Esq.
Sekin Transport International
1245 Royal Lane
DFW Airport, Texas 75261

RE: Country of origin marking of leather belts with a trademark of "Ferrini Italia" which is imported from South Africa; 19 CFR 134.47; application for trademark.

Dear Ms. Morris:

This is in response to your letters dated June 11, 1992 and June 7, 1993, on behalf of the Marvin Company, requesting a country of origin marking ruling concerning imported leather belts stamped with a trademark "Ferrini Italia" which is manufactured in South Africa. You submitted two sample belts marked with the country of origin. You have also submitted a photocopy of an application for trademark, filed with the U.S. Patent and Trademark Office on January 28, 1993.

FACTS:

You state that the Marvin Company imports leather belts from South Africa. The back of each belt is stamped with the trademark "Ferrini Italia". You also state that the Marvin Company proposes to mark the belts with the country of origin by either securely fastening a hang tag at the end of the belt holes by a plastic cord or by securely attaching a hang tag at the end of the belt underneath the adjustable snaps. You have submitted samples of both proposed methods. The hang tags that will be securely attached to the belts are marked with the words "Made in South Africa" in black lettering approximately 5 point (A point is approximately .01384 inch or 1/72 of an inch). You inquire as to whether marking the belts by either method is an acceptable country of origin marking for the belts and whether Customs prefers the marking with the tag securely attached through the hole at one end or at the end with the snaps. ISSUE:

Does the proposed methods of marking of the imported belts in the manner described above satisfy the country of origin marking requirements of section 304 of the Tariff Act of 1930, as amended and 19 CFR Part 134?

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.

In addition, section 134.46, Customs Regulations (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 an 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. 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. 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 19 CFR 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 meet the general standard of conspicuousness. In 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 language of 19 CFR 134.47 pertains to a trademark or trade name with a location in the United States. In this case the trademark "Ferrini Italia", signifies the country Italy, and not a U.S. location. Customs has held, however, that "[t]he rationale for granting a special exemption for trademarks and trade names containing the name of a domestic locality applies at least as strongly to trademarks bearing the name of a foreign locality, and therefore the intent of 19 CFR 134.47 was to include foreign trademark designations as well as domestic locales." See HQ 734455 (July 1, 1992).

In this case, the application for the trademark "Ferrini Italia" was filed on January 28, 1993 and is still pending. In HQ 734455, supra, Customs considered whether the mere filing of a trademark registration was sufficient evidence to establish a trademark for purposes of 134.47. In that ruling Customs held that:
until further notice we will continue to accept a filed application with the U.S. Patent and Trademark Office as sufficient evidence of a trademark for the purposes of 19 CFR 134.47. However, if for some reason the application is denied, then the requirements of 19 CFR 134.46 will have to be complied with.

Similarly, in this case, since an application for registration of the trademark "Ferrini Italia" has been filed, we find that the more lenient requirements of 19 CFR 134.47 apply here. Therefore, the country of origin need only appear in a conspicuous location preceded by words such as "Made in". The only remaining issue is whether the proposed methods of marking described above are acceptable. The hang tags used for both methods satisfy the marking requirements of conspicuousness, legibility and permanency since the tags are securely attached to the belts and the words "Made in South Africa" can be easily seen and read by an ultimate purchaser upon a casual examination of the belt. Accordingly, we find that either of the proposed methods, satisfies the requirements of 19 U.S.C. 1304 and 19 CFR Part 134.

HOLDING:

The proposed methods of marking imported belts by means of a hang tag securely affixed through the belt hole or underneath the belt snap in the manner described above, satisfy the requirements of 19 U.S.C. 1304 and 19 CFR Part 134.

Sincerely,

John Durant, Director

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