HQ 0734790 - Country of Origin Marking Requirements for Dolls; Toys; Hangtags; Conspicuousness; 19 CFR 134.46 and 19 CFR 134.47. - United States International Trade Commision Rulings

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HQ 734790
October 22, 1992

MAR-2-05 CO:R:C:V 734790 ER

CATEGORY: MARKING

Mr. Jacques Fournier
President
Importation Jacques Fournier Ltee.
1060, 140e Rue Est
P.O. Box 33
St-Georges, Comte Beauce
P.Quebec, Canada G5Y 5C4

RE: Country of Origin Marking Requirements for Dolls; Toys; Hangtags; Conspicuousness; 19 CFR 134.46 and 19 CFR 134.47.

Dear Mr. Fournier:

This is in response to your letter of July 2, 1992, in which you request a ruling concerning the country of origin marking requirements for certain dolls imported from Canada. A sample doll was submitted with your request.

FACTS:

The subject doll is approximately two feet in height and is outfitted in a dress, petticoat, shoes, socks and a straw hat. A durable cardboard hangtag is attached to the doll's dress by means of a plastic tie. To remove the hangtag, the hangtag would have to be cut or torn off the tie or the tie would have to be cut away from the dress.

The hangtag measures approximately 4" x 6", is folded down the middle to form a four-paged pamphlet and displays printed information on each of the four pages. Such information includes, on the front page of the hangtag, the words "Germany Style". Additionally, the name and address of the Canadian distributor appear on the inside right and rear pages of the hangtag. The words "Made in China" and "Fabrique en Chine" appear on a sticky label immediately below the Canadian distributor's name and address on the last page and in letters of equal size to those making up the address.

The words "Made in China" are also stamped in ink on the back of the doll's torso in letters of greater size than those in the Canadian distributor's address which appears on a "Certificate of Originality" sewn on to the doll's torso immediately above the stamped-on country of origin. To fully see the stamped-on marking, the back of the doll's dress must be opened. For purposes of this ruling, we will assume that the doll is sold in this manner and is not otherwise packaged.

ISSUE:

Is the doll correctly marked with 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 United States 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 United States the English name of the country of origin of the article. By enacting 19 U.S.C. 1304, Congress intended to ensure that the ultimate purchaser would be able to know by inspecting the marking on the imported goods the country of which the goods are 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. United States v. Friedlaender & Co., 27 C.C.P.A. 297, 302 C.A.D. 104 (1940).

Part 134, Customs Regulations (19 CFR 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. As provided in section 134.41, Customs Regulations (19 CFR 134.41), the country of origin marking is considered to be conspicuous if the ultimate purchaser in the United States is able to find the marking easily and read it without strain.

Relevant to your inquiry is whether the words "Germany style" appearing on the front of the hangtag and the distributor's Canadian address appearing twice on the hangtag and once on the certificate of originality, described above, are potentially misleading to the ultimate purchaser as to the actual country of origin of the doll. 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 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, 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. However, if either provision is triggered, the name of the country of origin must be preceded by "Made in", "Product of", or other similar words.

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, the words "Germany style" are not part of a registered trade name, and neither is the distributor's address. Accordingly, 19 CFR 134.47 does not apply and the only remaining question is whether the presence of such words triggers the provisions of 19 CFR 134.46.

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 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, 19 CFR 134.46 was not triggered. In HQ 733695 (January 15, 1991), the words "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 so no additional marking was necessary.

Similarly here, Customs finds that the words "Germany style" appearing on the front of the hangtag are unlikely to lead the ultimate purchaser to the erroneous conclusion that the merchandise is made in Germany. The other information appearing on the front of the hangtag is in larger lettering and identifies the doll as one in a series of dolls which make up a "collection". Since the doll is outfitted in a traditional German dress, the ultimate purchaser will know that the words "Germany style" refer to the garb of the doll and not to its country of origin.

However, the presence of the Canadian distributor's address does trigger the requirements of 19 CFR 134.46. We have previously ruled that in order to satisfy the close proximity requirement of this regulation, the country of origin marking must appear on the same side(s) or surface)s) on which the name of the locality other than the country of origin appears. (See HQ 734232 (November 20, 1991) citing to HQ 733618 (July 26, 1990) concerning soccer balls; HQ 732191 (April 27, 1990) concerning paint brush sets; HQ 733084 (March 19, 1990) concerning keywound alarm clocks; HQ 708994 (April 24, 1978) concerning product labels.) Thus, for the hangtag in this case to meet the marking requirements of 19 CFR 134.46, the country of origin marking -- "Made in China" -- must be further indicated on the inside right page where the reference to the Canadian distributor is located, as well as maintained at its present locations on the rear page of the hangtag and on the back torso of the doll below the certificate of originality.

HOLDING:

To comply with the country of origin marking requirements of section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304), the country of origin marking, "Made in China", must appear legibly, conspicuously and permanently on the inside right page of the hangtag as well as maintained in its present locations.

Sincerely,

John Durant, Director
Commercial Rulings Division

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