HQ 0734756 - Country of Origin Marking of Dolls; Container Marking; Conspicuous; Misleading Marking. - United States International Trade Commision Rulings

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HQ 734756

December 9, 1992

MAR-2-05 CO:R:C:V 734756 RC

CATEGORY: MARKING

Ms. Jeanne M. Burns
Thornley & Pitt, Inc.
48 Gold Street
San Francisco, CA 94133

RE: Country of Origin Marking of Dolls; Container Marking; Conspicuous; Misleading Marking.

Dear Ms. Burns:

This is in response to your letter of July 27, 1992, requesting a ruling upon the acceptable methods of marking imported dolls manufactured in Spain.

FACTS:

Your client, David Galoob Playthings, imports various dolls which are made in Spain for retail sale in the United States. You submitted two sample dolls; one depicts a newborn and the other a girl. The boxes are designed for sale at retail and utilize transparent plastic for the front and side panels to display the dolls. The trade name "Famosa" appears in various sizes and locations on the boxes. Both boxes are marked "Famosa- Spain" on the front panel in the lower left-hand corner in approximately 4.5 points. (A point is a unit of type measurement equal to 0.01384 inch or nearly 1/72 inch, and all type sizes are multiples of this unit.) One box is also marked "MADE IN SPAIN" in approximately 9 points on its top panel in French, English, and Spanish. Each doll itself is additionally marked "FAMOSA, C E MADE IN SPAIN" in approximately 9 points on the nape of the doll's neck. The boxes are easily opened, but the dolls are secured to the rear interior panel and the nape marking is obscured.

ISSUES:

Whether use of the trade name "Famosa" is confusing or misleading when it appears on the packaging of an article manufactured in Spain.

Whether the dolls or their packaging are conspicuously marked according to the country of origin marking requirements.
LAW AND ANALYSIS:

The marking statute, section 304, 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 U.S. 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 U.S. the English name of the country of origin of the article. Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304.

The country of origin for marking purposes is defined by section 134.1(b), Customs Regulations (19 CFR 134.1(b)), to mean the country of manufacture, production, or growth of any article of foreign origin entering the U.S. In the instant case, the country of origin is Spain; and the brand name of the dolls is "Famosa". A question has been raised by Customs field officials as to whether or not consumers would be confused or misled by the marking to believe that the country of origin of the dolls is "Formosa", the former name for Taiwan. We think not. Firstly, "Famosa" and "Formosa" are clearly spelled differently. Secondly, "Formosa" does not at present exist as a country, the island is now called "Taiwan". Thirdly, the trade name "Famosa" means "famous" in Spanish. Therefore it is our opinion that "Famosa" is not a misleading marking.

As provided under section 134.32(d), Customs Regulations (19 CFR 134.32(d)), an article is excepted from marking if the marking of the article's container will reasonably indicate the origin of such article. Customs must be satisfied that in all foreseeable circumstances the article will reach the ultimate purchaser in a properly marked container.

In HQ 732256 (January 26, 1990), Customs held that baby toys imported and sold in properly marked retail boxes were excepted from individual marking. There, the acceptable country of origin markings were at least 1/8" which is approximately 9 points. The unacceptable country of origin markings were 1/16" or approximately 4.5 points.

In the instant case, the retail box markings are similar in size to the markings reviewed in HQ 732256. The location of the marking "Famosa-Spain", on the front panel in the lower left- hand corner is visible upon casual inspection. It appears in clearly contrasting colors, black print on a white background and there is no other writing in the immediate vicinity to distract the ultimate purchaser. Therefore, even though the point size is less than 9 points, it is in our opinion in a conspicuous place and legible.

The marking on the top panel being approximately 9 points is adequate in size. However, the marking appears in the middle of other printed material, including foreign languages. Also, the print color is purple on a green background which is a little difficult to read. In our opinion, the marking on the top panel is acceptable, but not necessary in view of the adequacy of the other marking of the box.

With regard to the marking of the dolls, the packaging obscures the marking on the nape of the doll's neck. However, inasmuch as the retail packaging is sufficiently marked, it is not necessary that the article marking be visible. The transparent design of the boxes allows the ultimate purchaser to see the dolls and the package marking at the same time. It is unlikely that the dolls will be for sale on display outside of their boxes. However, if the dolls are on display or sold without packaging, the nape marking is sufficient.

HOLDING:

The trade name "Famosa" is not a confusing or misleading marking. The marking on the submitted sample packages is acceptable under section 304 of the Tariff Act, as amended, and Part 134, Customs Regulations.

Sincerely,

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