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HQ 734988

August 23, 1993

MAR-2-05 CO:R:C:V 734988 RSD

CATEGORY: MARKING

Mr. James Bickman, President
Stocker & Yale, Inc.
P.O. Box 494
Route 128 And Brimbal Avenue
Beverly, Massachusetts 01915-0344

RE: Country of origin marking for wrist watches; conspicuous; legible; hang tag; adhesive stickers; 19 CFR 134.41; 19 CFR 134.44; HQ 733940; HQ 733157

Dear Mr. Bickman:

This is in response to your letter dated February 17, 1993, regarding the country of origin marking requirements for a mechanical wrist watch. We have received a sample of the watch and its box.

FACTS:

Stocker & Yale is a supplier of wrist watches to United State Government for use by the military. It is presently importing watches from Switzerland. The watches are made to military specifications and the movements, either mechanical or quartz, are assembled into a molded one piece plastic case. Although the primary customer for these watches is the U.S. government, the watches are also sold in the consumer military after-market outlets.

Presently, the country of origin marking is put into the plastic molding die so that it is permanent, indelible and indented on the back of the watch case. The back of the watch case has various other information regarding the watch molded into it. The country of origin marking is obscured by the one piece nylon watch strap. The watch strap must be lifted in order to see the country of origin marking.

You indicate that putting the country of origin marking on the dial could present a problem because the military specifications do not provide for such marking on watches. It is our understanding that Stocker & Yale was advised by the Boston District of Customs to request a ruling from us regarding the acceptability of marking by a sticker or hang tag.

ISSUE:

Is the country of origin marking on the back of a watch case sufficiently conspicuous, if the watch strap must be lifted to observe the marking? If not, may the watch be marked by means of a sticker or hang tag?

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. Congressional intent in enacting 19 U.S.C. 1304 was 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." United States v. Friedlaender & Co., 27 C.C.P.A. 297 at 302 (1940). C.A.D. 104 (1940).

Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. 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 in the U.S, is able to find the marking easily and read it without strain.

In HQ 733940, October 24, 1991, involving the country of origin marking of pens, we indicated that there are certain factors that need to be considered in determining if the country of origin marking on an article is conspicuous within the meaning of 19 CFR 134.41 and 19 U.S.C. 1304. Among the factors that should be considered is the size of the marking, the location of the marking, whether the marking stands out, and the legibility of the marking. The size of the marking should be such that the ultimate purchasers can easily see the marking without strain. The location of the marking should be in a place on the pen where the ultimate purchaser could expect to find the marking or where he/she could easily notice it from a casual inspection. Whether the marking stands out is dependent on where it appears in relationship to other print on the article and whether it is in contrasting letters to the background. The legibility of the marking concerns the clarity of the letters and whether the ultimate purchaser could read the letters of the marking without strain. No single factor should be considered conclusive by itself in determining whether a marking meets the conspicuous requirement of 19 CFR 134.41 and 19 U.S.C 1304. Instead, it is the combination of these factors which determines whether the marking is acceptable. In some cases, a marking may be unacceptable even when it is in a large size because the letters are too hard to read or it is in a location where it would not be easily noticed. In other cases, even if the marking is small, the use of contrasting colors, which make the letters particularly stand out, could compensate to make the marking acceptable.

In HQ 733157, April 23, 1990, Customs ruled that the country of origin marking on a baseball cap which was on the back of a sewn in label was not sufficiently conspicuous to satisfy 19 CFR 134.41(b). We noted that the country of origin marking on the back of a label was not easy to find and that the ultimate purchaser should not have to fold over the label to read the country of origin marking. Similarly, in this case, we believe that the ultimate purchaser of the watch should not have to pull up the watch strap to observe the country of origin marking. Accordingly, we find that because the watch strap obscures the country of origin marking, the marking is not in a conspicuous place.

With regard to the use of stickers or tags, 19 CFR 134.44 indicates that any method of marking at any location insuring that the country of origin will conspicuously appear on the article shall be acceptable. Such marking must be legible and sufficiently permanent so that it will remain on the article until reaches the ultimate purchaser unless it is deliberately removed. If the marking is done by means of tags or stickers, they must be attached or affixed in a conspicuous place so securely that they will remain on the watches until they reach the ultimate purchasers. (See 19 CFR 134.44(b) and (c)). A sticker affixed to the nylon strap would not adhere as well as a sticker placed elsewhere because of its textured surface. Therefore, we suggest that a sticker appear on the front of the watch or a hang tag be securely affixed. In addition, if the watch strap is made in a country other than Switzerland, it must also be separately marked to indicate its own country of origin. We suggest that another marked sample of the watch be presented to the Boston District office prior to importation for approval.

In addition, if the watch strap is made in a country other than Switzerland, it must also be separately marked to indicate its own country of origin. See HQ 734565 October 16, 1992.

We also note that the sample box containing the watch has a United States reference, "BEVERLY MA". This U.S. reference triggers the requirements of 19 CFR 134.46, which requires that when the name of any city or locality in the U.S., other than name of the country or locality in which the article was manufactured or produced, appears 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 this section is to prevent the possibility of misleading or deceiving the ultimate purchaser as to the actual origin of the imported goods.

You should also be aware that this ruling only concerns the marking requirements under 19 U.S.C. 1304 and does not relate to the special marking requirements for watches set forth in Chapter 91, Additional U.S. Note 4 of the Harmonized Tariff Schedule of the Unite States (HTSUSA) (19 U.S.C. 1202). This note requires that any watch movement, or case provided for in the subpart, whether imported separately or attached to any article provided for in the subpart, shall not be permitted to be entered unless conspicuously and indelibly marked by cutting, die-sinking, engraving, or stamping or mold-marking (either indented or raised), as specified in the provisions of this note. This language is mandatory. The Customs Service has no authority for granting exceptions to the special marking requirements for watches. (see HQ 726711, October 22, 1984).

Section (a) of Note 4 requires that watch movements shall be marked on one or more of the bridges or top plates to show the name of the country of manufacture; the name of the manufacturer or purchaser; and, in words, the number of jewels, if any serving a mechanical purpose as frictional bearings. Section (c) of Note 4 requires that watch cases shall be marked on the inside or outside of the back cover to show the name of the country of manufacture, and the name of the manufacturer or purchaser. The country of manufacture in these requirements refers to where the movements, and cases, are manufactured rather than where the watch was made. The special marking must be accomplished by one of the methods specified in the Additional U.S. Note 4, and using stickers is not an acceptable alternative.

HOLDING:

The country of origin marking on the sample watch is not in a conspicuous location because it is obscured by the watch strap which has to be lifted up to observe the marking. Marking the watch by an adhesive sticker or a hang tag securely affixed would be acceptable so long as the marking is conspicuous and will remain on the article until it reaches the ultimate purchaser unless it is deliberately removed.

Sincerely,

John Durant, Director

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