HQ 0558657 - Country of origin marking of "America Perry Ellis" watch; wooden box; conspicuous location; trademark; Additional U.S. Note 4, Chapter 91, HTSUS - United States International Trade Commision Rulings

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HQ 558657

August 16, 1994

MAR-2-05 CO:R:C:S 558657 MLR

CATEGORY: MARKING

Mr. Chris Leung
CSC Time Corporation
482 Sunrise Highway
Rockville Centre, NY 11570

RE: Country of origin marking of "America Perry Ellis" watch; wooden box; conspicuous location; trademark; Additional U.S. Note 4, Chapter 91, HTSUS

Dear Mr. Leung:

This is in reference to your letter of July 25, 1994, requesting a ruling regarding the country of origin marking requirements of certain America Perry Ellis watches. A sample was submitted with your request.

FACTS:

A Notice of Redelivery indicates that the sample is a men's quartz analog watch, with a no (0) jewel watch movement in a base metal watch case and a leather strap. The watch is printed with the words "AMERICA PERRY ELLIS" on the face of the dial in approximately 5 and 4 point types, and with "JAPAN" on the bottom of the face of the dial in approximately 3 point type. The back of the watch case is also engraved with "AMERICA PERRY ELLIS" and "JAPAN MOVT." We are also informed that the inside of the watch case is marked with "CSC Time Corp.", the purchaser. The leather strap is embossed with the words "AMERICA PERRY ELLIS" and "GENUINE LEATHER HONG KONG". Affixed to the metal strap fastener is a sticker with the words "AMERICA PERRY ELLIS."

The watch is packaged in a 6 x 3 x 1 inch wood box. On the top of the box are the words "AMERICA PERRY ELLIS." The bottom of the box is marked with an unclear circular ink stamp that indicates the box is from China. Inside the box, there is a cardboard platform that holds the watch in place containing the words "BOX HONG KONG" on the side. The box also contains a pamphlet with "AMERICA PERRY ELLIS" on the front, which describes the general instructions and ten-year limited warranty.

ISSUE:

What are the country of origin marking requirements for the watch at issue.

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 imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the article 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. Inc., 27 CCPA 297, 302, 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. For country of origin marking purposes under 19 U.S.C. 1304, Customs considers the country of origin of a watch to be the country of manufacture of the watch movement. See HRL 731546 dated October 27, 1988. The country of origin marking for a watch may be placed on the face of the dial or on the outside surface of the back cover of the watch case. As provided in 19 CFR 134.41(b), the country of origin marking is considered to be conspicuous if the ultimate purchaser in the U.S. is able to find the marking easily and read it without strain.

In this case, the U.S. reference "AMERICA PERRY ELLIS" on the face of the dial and on the back cover triggers the requirements of 19 CFR 134.46, which requires that if the name of any city or locality in the U.S., or the name of any foreign country or locality other than 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 good. However, the close proximity requirement, which has been interpreted to mean the same surface, is not necessarily applicable where a location other than the country of origin appears as part of a trademark or trade name; rather, the country of origin of the article may be placed in some other conspicuous location. 19 CFR 134.47.

For the purposes of this ruling we are assuming that the watch movement is manufactured in Japan. Consequently, in order to be conspicuous, the face of the dial or the outside surface of the back cover of the watch case must indicate the country of origin of the watch as Japan. In HRL 735251 dated October 7, 1993, Customs indicated that in the case of watches, the word "Movement" or an abbreviation thereof would be the equivalent of "Made In." Furthermore, documentation has been submitted indicating that "America Perry Ellis" is a trademark registered with the United States Patent and Trademark office. We are also informed that goods bearing "AMERICA PERRY ELLIS" may be manufactured in Japan. Consequently, we find that the marking "JAPAN" on the face of the dial with "AMERICA PERRY ELLIS", and the marking "JAPAN MOVT" on the back cover of the watch with "AMERICA PERRY ELLIS" is conspicuous and satisfies the requirements of 19 U.S.C. 1304.

In addition, 19 CFR 134.43(b), in conjunction with 19 CFR 11.9, provides that watches must be marked in accordance with the special marking requirements set forth in Additional U.S. Note 4, Chapter 91, Harmonized Tariff Schedule of the United States (HTSUS) (hereinafter "Additional U.S. Note 4"). This note requires that any watch movement or case provided for in the chapter, whether imported separately or attached to an article provided for in the chapter, shall not be permitted to be entered unless conspicuously and indelibly marked by cutting, die- sinking, engraving, stamping or mold-marking (either indented or raised), as specified in the provisions of this note. This language is mandatory. Customs has no authority to grant exceptions to the special marking requirements for watches. See HRL 726711 dated October 22, 1984.

Section (a) of Additional U.S. Note 4 requires that watch movements be marked on one or more of the bridges or top plates to show: (1) the name of the country of manufacture; (2) the name of the manufacturer or purchaser; and (3) in words, the number of jewels, if any, serving a mechanical purpose as frictional bearings. Section (c) of Additional U.S. Note 4 requires that watch cases shall be marked on the inside or outside of the back cover to show: (1) the name of the country of manufacture; and (2) the name of the manufacturer or purchaser. Section 11.9(b), provides that the name of the manufacturer or purchaser which must appear on articles provided for in Chapter 91, HTSUS, and specified in Additional U.S. Note 4, Chapter 91, may be either the actual name of the manufacturer or purchaser of a duly registered trade name under which such manufacturer or purchaser carries on his business. A trademark shall not be accepted as meeting any such special marking requirement unless it includes the full name of the manufacturer or purchaser. The term "purchaser" as used in this paragraph means the purchaser in the U.S. by whom or for whose account the articles are imported.

As indicated above, "America Perry Ellis" is a duly registered trademark. However, CSC Time Corp. is the purchaser of the watch movement and watch case. Accordingly, "CSC TIME CORP" may be used for the purpose of marking the watch movement and case with their country of origin. HRL 718311 dated January 26, 1982. However, since we are unable to remove the back cover of the watch, we are unable to determine whether the special marking requirements set forth in Additional U.S. Note 4 have been satisfied. Please note that if the bridge or top plate of the watch movement is marked "JAPAN", "CSC TIME CORP." (or with the name of the manufacturer), and "no (0) jewel", the special requirements of Additional U.S. Note 4(a)(i), (ii), and (iii), will be satified. Furthermore, in regard to the watch case, Additional U.S. Note 4(c)(ii) will be satisfied, if, in fact, the marking of "CSC TIME CORP." is on the inside back of the watch. The marking "JAPAN MOVT" does not satisfy the country of origin marking of the watch case because it refers to the watch movement. Therefore, only if the inside back of the watch is presently marked with the country of origin of the watch case, will Additional U.S. Note 4(c)(i) be satisfied.

In regard to watch straps, Customs has previously ruled that they must be marked with their own country of origin. HRL 731546 dated October 27, 1988. For purposes of this ruling, we are assuming that the country of origin of the watch strap is Hong Kong. We find that the embossing of the leather strap with "GENUINE LEATHER HONG KONG" is sufficiently legible, conspicous, and permanent to satisfy the requirements of 19 U.S.C. 1304.

In regard to the packaging of the watch in a wooden box, 19 CFR 134.23 provides that containers or holders designed for or capable of reuse after the contents have been consumed, whether imported full or empty, must be individually marked with the country of their own origin with a marking such as, "Container Made in ...". In this case, it is our opinion that the wooden box must be individually marked to indicate its own country of origin because it is capable of reuse. See HRL 734691 dated January 12, 1994 (jewelry boxes of substantial construction which served a protective function for their contents, and which were not ordinarily discarded by the consumer, were separate articles of commerce and had to be individually marked with their own country of origin).

Furthermore, the sample wooden box containing the watch has the U.S. reference "AMERICA PERRY ELLIS" on the top. As stated above, because "AMERICA PERRY ELLIS" is a duly registered trademark, the country of origin of the box must be placed in close proximity to the U.S. reference or may be placed in some other conspicuous location. 19 CFR 134.47. We find that the circular ink stamp on the bottom of the wooden box is in a conspicous location to indicate the country of origin of the box; however, it is not legible enough and should be restamped.

In addition, we believe that watches are items which the ultimate purchaser will want to inspect prior to purchase. Therefore, since the wooden box can be readily opened, there is no requirement that the box be marked to indicate the country of origin of the watch since the country of origin marking on the watch is conspicuous enough to notify the ultimate purchsaer of the country of origin of the watch.

Lastly, in regard to the cardboard platform, the marking on the side "BOX HONG KONG" should be removed. First, it is unclear whether this marking refers to the wooden box or the cardboard itself. Second, since the wooden box will be opened by the ultimate purchaser to examine the watch and its country of origin, the marking on the cardboard is not necessary. See 19 CFR 134.24(d)(3). The same rationale is applicable to the enclosed pamphlet which, although it references "AMERICA PERRY ELLIS", is not required to be marked.

HOLDING:

On the basis of the sample submitted and assuming the watch movement is manufactured in Japan, either the marking of "JAPAN" on the face of the dial or the marking "JAPAN MOVT" on the outside back cover satisfies the requirements of 19 U.S.C. 1304. In regard to the special marking requirements, if the bridge or top plate of the watch movement is marked "JAPAN", "CSC TIME CORP." (or with the name of the manufacturer), and "no (0) jewel", Additional U.S. Note 4(a)(i), (ii), and (iii), will be satisfied. Furthermore, in regard to the watch case, none of the special marking appears on the outside of the back cover. Therefore, only if the marking "CSC TIME CORP." appears on the inside back of the watch will the requirement of Additional U.S. Note 4(c)(ii) be satisfied. Also, if the inside back of the watch is marked with the country of origin of the watch case, Additional U.S. Note 4(c)(i) will be satisfied.

We also find that the embossing of the watch strap with "GENUINE LEATHER HONG KONG" satisfies the requirements of 19 U.S.C. 1304. The marking of the wooden box "BOX MADE IN CHINA" on the bottom with a circular ink stamp will be sufficient if it is legible. The cardboard platform and pamphlet are not required to be marked.

Sincerely,

John Durant, Director

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