HQ 0735269 - Country of Origin Marking of Work Boots; Conspicuous Location; 19 CFR 134.47. - United States International Trade Commision Rulings

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HQ 735269

August 16, 1993

MAR-2-05 CO:R:C:V 735269 RC

CATEGORY: MARKING

Mr. John B. Pellegrini
Ross & Hardies
65 East 55th Street
New York, New York 10022-3219

RE: Country of Origin Marking of Work Boots; Conspicuous Location; 19 CFR 134.47.

Dear Mr. Pellegrini:

This is in response to your letter of July 22, 1993, on behalf of Eastman Footwear Corp., requesting a ruling on the country of origin marking requirements for work boots made in China.

FACTS:

Your client, Eastman Footwear Corp., imports work boots manufactured in China for retail sale in the U.S. The words "Smith's AMERICAN" appear in three locations on the submitted sample work boots. "Smith's AMERICAN" appears on the outer side of the exterior just above the heel in approximately 13.5 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.) "Smith's AMERICAN" appears on an interior label near the top inner of the boot's tongue in approximately 13.5 points. Lastly, "Smith's AMERICAN" appears on the inner sole in the location of the heel in approximately 13.5 points. The boot size appears immediately below. On the same label, below the size, the country of origin marking "MADE IN CHINA" appears in lettering of approximately 13.5 points. You also submitted a photocopy of a document indicating that the words "Smith's AMERICAN" are part of a trademark registered with the United States Patent and Trademark Office, Reg. No.'s 1,674,348 and 1,077,007. Finally, you submitted photocopies of the boot box tops and two end panels. The box top indicates the words "SMITH'S AMERICAN" (in approximately 31.5 points) "WORK BOOTS--FOR NEARLY A CENTURY". On one end panel of the box "SMITH'S AMERICAN" appears in approximately 81 points. The other end panel indicates the style, color, size, and the country of origin marking. "MADE IN CHINA" appears in approximately 9 points.

ISSUE:

Whether the country of origin marking as indicated on the work boot and box are in a conspicuous place and otherwise satisfy the requirements of section 19 CFR 134.47.

LAW AND ANALYSIS:

Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304), requires that articles of foreign origin or their containers be marked in a conspicuous place legibly, indelibly, and permanently to indicate to the ultimate purchaser 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 at 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.

The "ultimate purchaser" is generally defined, in section 134.1(d), (19 CFR 134.1(d)), as the last person in the United States who will receive the article in the form in which it was imported.

Under section 134.47, Customs Regulations (19 CFR 134.47), when a trademark or trade name marking indicates the name of a country or locality other than the country of origin, the country of origin shall be indicated either "in close proximity or in some other conspicuous location" preceded by "Made in", "Product of", or similar words. emphases added.

As a registered trademark, the words "Smith's AMERICAN" trigger the requirements of 19 CFR 134.47. Thus, the marking of country of origin must appear either in "close proximity" to the name "Smith's AMERICAN" or in some other conspicuous location.

The marking rulings have followed the principle that in determining what is a conspicuous location for country of origin marking, it is necessary to consider the context in which the marking appears. Customs generally considers whether the appearance of words and symbols might, in their context, suggest to the ultimate purchaser a country of origin other than the actual country of origin of the foreign article.

Thus, for instance, in HRL 729096 (January 2, 1986), Customs ruled that although athletic shoes made in Korea would normally have been considered acceptably marked, the presence of prominent words and symbols printed on the shoes and their boxes referring to the U.S. and the U.K. dictated that additional marking appear on the box and on the size labels. The references to the U.S. and the U.K. had rendered the existing marking on the tongue and heel of the shoe inconspicuous, such that "...it would take a very determined consumer to ascertain...the country of origin..." Under these circumstances a more expansive construction of the term "conspicuous" was considered necessary to give effect to the purposes for which section 304 was enacted.

Another instructive ruling was issued as HQ 734245 (February 18, 1992), and concerned the required marking for toy cars sold under the trademark "American Muscle". The New York Seaport had ruled that marking on the bottom side of the box alone was insufficient and further, that in each instance where the name "American Muscle" appeared, the country of origin was required to be indicated. This office concurred that the marking on the bottom of the box was insufficient. However, instead of requiring repetitive marking of the country of origin (in "close proximity" pursuant to 19 CFR 134.46), we applied 19 CFR 134.47 and found to be conspicuous a marking appearing on the front side of the box in 1/2" white lettering against a black background. We considered this location sufficient to eliminate any question which might have been created whether the "American Muscle" product was of U.S. or Chinese origin. See also HQ 733046 (May 4, 1990)(marking is conspicuous under 19 CFR 134.47 if it appears on two of the four box panels upon which appear the name "TCA Toy Corporation of America".)

In this instance, we find that 19 CFR 134.47 is satisfied because the country of origin marking "MADE IN CHINA" appears twice, both times located adjacent to other important consumer information, to wit, the size of the shoe. Additionally, the country of origin marking clearly appears in lettering which contrasts its background.

HOLDING:

The country of origin marking on the submitted sample work boot and box satisfy the requirements of 19 U.S.C. 1304 and 19 CFR 134.47.

Sincerely,

John Durant, Director

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