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HQ 735024


April 7, 1994

Mar-2-05 CO:R:C:V 735024 AT

CATEGORY: MARKING

Andrew G. Halpern, Esq.
Strasburger & Price, L.L.P.
901 Main Street
Suite 4300
Dallas, Texas 75202

RE: Country of origin marking of reading glasses imported from various foreign countries; conspicuous; close proximity; U.S. locality; trademark/trademark application; 19 CFR 134.46; 19 CFR 134.47; HQ 734469; refers ultimate purchaser to look for origin in another location

Dear Mr. Halpern:

This is in response to your letters dated March 4, September 1 and November 22, 1993, on behalf of The Bonneau Company (Bonneau), requesting a ruling on the country of origin marking of imported reading glasses with hang tags attached before or after importation into the U.S. A sample pair of reading glasses and two hang tags with the proposed marking which are to be attached were submitted with your letters.

FACTS:

You state that Bonneau intends to import reading glasses from various countries to be sold at retail stores in the U.S. You also state that Bonneau's normal course of business is to source its products from manufacturers overseas and receive direct shipment from the manufacturers at the port of Dallas- Fort Worth, Texas. You claim that each of these manufacturers is responsible for marking the earpiece of each pair of reading glasses with the country of origin. The country of origin marking is designated on the reading glasses at the time of manufacture by imprinting the marking into the plastic or metal earpiece. Examination of the sample reading glasses indicates that the country of origin marking is printed on the earpiece in lettering approximately 4.5 point (a point is a unit of measurement approximately equal to 0.01384 inches or nearly 1/72 inches and all type sizes are a multiple of this unit). You also state that because reading glasses are considered medical devices, Food and Drug Administration (F.D.A.) labeling regulations require the disclosure of the manufacturer or distributor and a U.S. place of business on a label. In order to facilitate Bonneau's compliance with the F.D.A. labeling requirements, Bonneau proposes to have hang tags attached to the nose piece of each pair of reading glasses by the manufacturer or by Bonneau in the U.S. The front of the first sample hang tag is marked with the words "SparePair USA" in blue lettering approximately 7.5 point. You state that Bonneau has filed an application dated May 7, 1993 for trademark registration with the United States Patent and Trademark Office for the trademark "SparePair USA" (a copy of the application was submitted). The front side of the other sample hang tag is marked with the words "PennOptics" (approximately 13 point lettering) and Pennsylvania Optical (approximately 4.5 point lettering). You indicate that "PennOptics is a registered trademark (Registration No. 1,540,276) and "Pennsylvania Optical" is a trade name of the Bonneau Company. Other information such as the price, power of the lenses (diopter) and style of glasses also appears on the front side of both labels.

Bonneau proposes to mark the back portion of the hang tags with the words "Made in Country Indicated On Glasses" in black lettering approximately 4.5 point followed by the words "Bonneau Company, Dallas, TX 75234, U.S.A." in the same type size.

You contend that since each pair of reading glasses is properly marked with the country of origin on the earpiece the proposed marking "Made in Country Indicated On Glasses" printed on the back of the hang tag satisfies the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134.

ISSUES:

Does the marking on the reading glasses as described above satisfy the country of origin marking requirements set forth in Section 304 of the Tariff Act of 1930, as amended?

Does the proposed marking on the hand tag marked in the manner described above satisfy the marking requirements of 19 CFR 134.46 and 19 CFR 134.47?

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, 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. Section 134.1(d), Customs Regulations (19 CFR 134.1(d)) defines ultimate purchaser as "generally the last person in the U.S. who will receive the article in the form in which it was imported." The definition then gives examples of who might be the ultimate purchaser if the imported article is used in the manufacture, if the imported article is sold at retail in its imported form and if an imported article is distributed as a gift. If an imported article is to be sold at retail in its imported form, the purchaser at retail is the ultimate purchaser. In this case, the ultimate purchaser of the reading glasses is the consumer who purchases the product at retail.

Are The Reading Glasses Conspicuously Marked With The Country Of Origin?

Section 134.41, Customs Regulations (19 CFR 134.41), provides that 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 this case, we find that the country of origin marking printed on the earpiece is conspicuous. The country of origin marking is easy to find since it is placed on the earpiece; a location where an ultimate purchaser would expect to find such a mark prior to purchasing the sunglasses. Furthermore, the country of origin marking, printed in approximately 4.5 point lettering, is both easy to find and can be read without strain.

Does The Marking On The Hang Tag Marked In The Manner Described Above Satisfy The Marking Requirements Of 19 CFR 134.46 AND 19 CFR 134.47?

The second issue presented in this case is whether the proposed marking "Made in Country Indicated On Glasses" printed on the attached hang tag is an acceptable country of origin marking in view of the fact that the words "SparePair USA" or "Pennsylvania Optical" appear on either the front side of the hang tag and the words "Bonneau Company, Dallas, TX, U.S.A." appear on the back of the hang tag directly above or below the country of origin marking.

In determining whether the marking is acceptable, Customs will take into account the presence of words or symbols on an article which may mislead the ultimate purchaser as to the country of origin. Consequently, if the words "United States," or "America," the letters "U.S.A.," any variation of such words or letters, or the name of any city or locality other than the country of origin appear on the imported article, special marking requirements are triggered.

Section 134.46, Customs Regulations (19 CFR 134.46), requires that when the name of any city 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. Section 134.47, Customs Regulations (19 CFR 134.47), requires a slightly less restrictive marking than 134.46 when the location name other than the country of origin appears as part of a trademark or trade name. Under 19 CFR 134.47, when the name of a place other than the country of origin appears as part of a trademark or trade name or as part of a souvenir marking, the actual country of origin must appear in close proximity to the place name "or in some other conspicuous location". In other words, if the question concerns a trade name or trademark, the country of origin marking needs only meet the general standard of conspicuousness. Both 134.46 or 134.47, require that the name of the country of origin must be preceded by "Made in," Product of," or words of similar meaning.

The words "SparePair USA", and "Pennsylvania Optical" which appear on the front side of the hang tags trigger the special marking requirements of 19 CFR 134.47 in that they are either a trademark or trade name. With respect to the mark "SparePair USA", Customs has ruled that the filing of a trademark registration request, as exhibited here, is considered sufficient evidence to establish a trademark for purposes of 19 CFR 134.47. See, HQ 734455 (July 1, 1992). Thus, the country of origin marking needs only meet the general standard of conspicuousness. For the reasons stated below, we find that the marking "Made in Country Indicated On Glasses" printed on the back of the hang tags satisfy the requirements of 19 CFR 134.47. However, if for some reason the application for registration is denied, then the requirements of 19 CFR 134.46 will have to be complied with.

The special marking requirements set forth in section 134.46 are triggered by the presence of the words "Dallas, TX U.S.A." printed directly above the country of origin marking. Accordingly, the actual country of origin of the reading glasses must appear "in close proximity" to the U.S. reference and in lettering of at least a comparable size. Therefore, the critical issue presented in this case is whether the marking "Made in Country Indicated On Glasses" printed directly below the words "Dallas, TX U.S.A." along with the country of origin marking on the frames satisfies the country of origin marking requirements of 19 CFR 134.46.

In HQ 734469 (September 22, 1992), Customs ruled that hang tags which were affixed to conspicuously marked sunglasses and marked with the words "Country of Origin Indicated On Sunglasses" in close proximity and in at least a comparable size to the non- origin geographical reference "Dallas, TX U.S.A." satisfied the country of origin marking requirements of 19 CFR 134.46.

Similarly, in this case, we find that the proposed method of marking satisfies the requirements of 19 CFR 134.46. The words "Made in Country Indicated On Glasses" appears in close proximity and at least in comparable size to the U.S. reference "Dallas, Texas U.S.A." Moreover, as in HQ 734469, the actual country of origin is conspicuously marked on the earpiece of each pair of reading glasses. Because the country of origin marking "Made In Country Indicated on Glasses" is conspicuously located on the back of the hang tags the marking requirements of 19 CFR 134.47 are satisfied as well.

HOLDING:

The proposed method of marking hang tags attached to conspicuously marked reading glasses by the manufacturer or Bonneau in the U.S., as described above, satisfies the requirements of 19 U.S.C. 1304 and 19 CFR Part 134.

Sincerely,

John Durant, Director

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