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HQ 735206

September 3, 1993

MAR-2-05 CO:R:C:V 735206 RSD

CATEGORY: MARKING

Diane L. Weinberg, Esq.
Sandler, Travis & Rosenberg
505 Park Avenue
New York, New York 10022-1106

RE: Country of origin marking of a men's dress shirt; conspicuous location; hang tags; 19 CFR 134.47; 19 CFR 134.46; HQ 735085

Dear Ms. Weinberg:

This is in response to your letter of June 2, 1993, on behalf of the Manhattan Shirt Company, a division of the Salant Corporation, requesting a ruling on the country of origin marking requirements for a men's dress shirt. A sample of the dress shirt in a poly bag was received. A second submission dated August 20, 1993, with a mock-up of a proposed hang tag for the shirt has also been received.

FACTS:

Manhattan Shirt Company, a division of Salant Company, plans to import men's dress shirts. The sample shirt is manufactured from a blend of 60 percent cotton and 40 percent polyester. "Manhattan" is a registered trademark of the Salant Corporation. The shirt will have a brand name label in the center of the neck. Adjacent to the brand label and stitched to a seam in the neck, is a label containing the size, fiber content and country of origin. This label states "Made in Guatemala". Below the brand name label is a removable paper label attached to the garment by means of an adhesive, which repeats the trademark "Manhattan".

The garment is imported and sold at retail in a clear poly bag which repeats the trademark "Manhattan" several times on its front and back. The country of origin on the label in the neck of the shirt is visible through the poly bag. Manhattan also proposes to attach a hang tag to a button on the placket which contains the American flag on one side. On the reverse side of the hang tag is a guarantee advising purchasers to write to Manhattan's address in New York if they are not satisfied with the garment.

In response to concerns raised during telephone conversations with a member of my staff, Manhattan agreed to revise its hang tag to put a country of origin marking on it. The country of origin marking will vary depending on where the shirt is made. Manhattan Shirt Company has advised that the country of origin will always appear on the hang tag in question. The country of origin marking on the mock-up of the proposed of the hang tag appears on the bottom in letters of about 1/8 of an inch. The proposed marking on the hang tag reads "Assembled in Mexico" or "Assembled in Guatemala". You have indicated that the company will use the words "Assembled in" on the imported shirts only when they are entered as American Goods Returned.

ISSUE:

Will the proposed country of origin markings on the sewn-in label in the neck area of the shirt and on the attached hang tag satisfy the requirements of the 19 CFR 134.47 for conspicuous marking?

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.

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, Customs Regulations (19 CFR 134.41), 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 addition, section 134.46, Customs Regulations (19 CFR 134.46), requires that when the name of any city or locality in the U.S., or the name of any foreign country or locality other than the name of the country or locality in which the article was manufactured or produced, appear 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. Customs has ruled that in order to satisfy the close proximity requirement, the country of origin marking must appear on the same side(s) or surface(s) in which the name of the locality other than the country of origin appears (HQ 708994, dated April 24, 1978). The purpose of 19 CFR 134.46 is to prevent the possibility of misleading or deceiving the ultimate purchaser as to the origin of the imported article.

The same purpose is effected by Section 134.47, Customs Regulations (19 CFR 134.47), which provides that when as part of a trademark or trade name or as part of a souvenir marking, the name of a location in the U.S. appears, the article shall be legibly, conspicuously, and permanently marked to indicate the name of the country of origin of the article preceded by the words "Made in," "Product of," or other similar words, in close proximity or in some other conspicuous location (emphasis added). In such circumstance, no comparable size requirement applies to the size of the lettering.

The multiple appearances of the registered trademark "Manhattan" on the label sewn into the neck area, adhesive sticker, hang tag, and poly bag are geographical references which trigger the requirements of 19 CFR 134.47. Therefore, the country of origin marking must appear in "close proximity" to the word "Manhattan" or at least in some other conspicuous location.

The prominence and the multiple use of the word "Manhattan" on the shirt and its poly bag is such that the country of origin marking solely on the label on the neck of the shirt would not by itself be conspicuous. This conclusion is consistent with previous determinations in which we have found that marking which might otherwise have been in a conspicuous place is inadequate because of the appearance of the words and symbols which might in their context suggest to the ultimate purchaser a country of origin other than the actual country of origin of the foreign article. For example, in HQ 734085 (June 4, 1993), we found that the country of origin marking on the back of packages of frozen vegetables was not in a conspicuous location because of the prominent appearance of the trademark "American Mixtures" on the front of the package. Although the back of the package was a usual location for the country of origin marking, in that case because of the "American Mixtures" trademark, the country of origin marking on the package was not adequate. We indicated that the circumstance and context dictated that the marking appear on the front side of the packaging.

We believe that this approach must be used in this case. Because of the multiple use of the word "Manhattan", it is necessary to require an additional country of origin marking to
give effect to the purpose of 19 CFR 134.47 to assure that the ultimate purchaser is not misled or deceived as to the origin of the product he/she purchases.

Manhattan Shirt's proposal to place an additional country of origin marking on the hang tag will satisfy this requirement. The hang tag will be prominently displayed on the front of the shirt attached on a button on the placket. It is likely to attract the attention of a potential purchaser. The country of origin marking on the tag is large enough and in such a location that it should be noticed from a casual inspection of the shirt. The country of origin marking will be in letters large enough, about an 1/8th of an inch, and assuming that the marking on the finished hang tag is printed clearly, the ultimate purchaser should be able to be read the marking without strain. Accordingly, the combination of putting the country of origin marking on a sewn-in label in the neck area and on the hang tag on the front of the shirt should advise the ultimate purchaser of the country of origin of the shirt and clarify any confusion as to origin of the shirt due to the use of the trademark "Manhattan". Thus the proposed markings on the hang tag and in the neck area will satisfy the conspicuousness requirement of 19 CFR 134.47.

You should also be advised that the marking "Assembled in " will only be acceptable marking if the article is eligible for a partial exemption from duty under 9802.00.80, HTSUS. In addition, although the back of the hang tag has a U.S. address, it does not trigger the requirements of 19 CFR 134.46 because the reference is in the context of warranty information and customer assistance. Customs has previously indicated that a U.S. reference in the context of warranty information will not mislead the ultimate purchaser as to the origin of the garment. See HQ 733963 (January 17, 1993).

HOLDING:

The combination of the country of markings on the sewn-in label in the neck area of the shirt and on the hang tag attached to the shirt are sufficient to satisfy the requirements for 19 CFR 134.47.

Sincerely,

John Durant, Director
Commercial Rulings Division

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