United States International Trade Commision Rulings And Harmonized Tariff Schedule
faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers
faqs.org > Rulings and Tariffs Home > Rulings By Number > 1994 HQ Rulings > HQ 0735144 - HQ 0735271 > HQ 0735207

Previous Ruling Next Ruling



HQ 735207


November 15, 1993

MAR-2-05 CO:R:C:V 735207 AT

CATEGORY: MARKING

Harold I. Loring, Esq.
Grunfeld, Desiderio, Lebowitz & Silverman 12 East 49th Street
New York, New York 10017

RE: Country of origin marking of shoe boxes printed with a trademark "Boston Accent" containing shoes manufactured in Brazil; 19 CFR 134.47; application for trademark.

Dear Mr. Loring:

This is in response to your letter dated June 2, 1993, on behalf of Elicon Resourcing Group. Inc. ("Elicon"), requesting a country of origin ruling concerning shoe boxes stamped with a trademark "Boston Accent" which contain shoes manufactured in Brazil. A sample shoe box marked with the proposed country of origin marking was submitted for our review. You have also submitted a photocopy of an application for trademark, filed with the U.S. Patent and Trademark Office on October 28, 1992.

FACTS:

You state that Elicon intends to import shoes from Brazil. The shoes will be marked with the country of origin. Also, the shoes will be packaged into retail boxes which are the subject of this ruling request. The sample shoe box is printed with the trademark "Boston Accent" on the lid and on the two side panels in purple lettering. The country of origin marking "Made in Brazil" appears on the two side panels directly below the trademark in white lettering approximately 5 points (a point is approximately .01384 inch or 1/72 of an inch). Other information such as, the style, stock no., color and size also appears on the two side panels. You inquire as to whether the proposed country of origin marking on the sample shoe box satisfies the marking requirements of 19 U.S.C. 1304.
ISSUE:

Does the proposed method of marking on the sample shoe box as described above satisfy the country of origin marking requirements of section 304 of the Tariff Act of 1930, as amended and 19 CFR Part 134?

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. The Court of International Trade stated in Koru North America v. United States, 701 F. Supp. 229, 12 CIT 1120 (CIT 1988), that "in ascertaining what constitutes the country of origin under the marking statute, a court must look at the sense in which the term is used in the statute, giving reference to the purpose of the particular legislation involved. The purpose of the marking statute is outlined in United States v. Frielaender & Co., 27 CCPA 297 at 302, C.A.D. 104 (1940), where the court stated that: "Congress intended 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."

Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. Section 134.41(b), Customs Regulations (19 CFR 134.41(b), mandates that the ultimate purchaser in the U.S. must be 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. 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. 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. 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 name of the actual country of origin must appear in close proximity to the place "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. In either 134.46 or 134.47, the name of the country of origin must be preceded by "Made in", "Product of", or words of similar meaning. See HQ 734175 (February 24, 1992); HQ 734277 (December 24, 1991).

The language of 19 CFR 134.47 pertains to a trademark or trade name with a location in the United States. In this case, the trademark "Boston Accent" includes a U.S. location.

You presented evidence that an application for the trademark "Boston Accent" was filed with the U.S. Patent and Trademark Office on October 28, 1992. You advise that it is still pending. In HQ 734455, supra, Customs considered whether the mere filing of a trademark registration was sufficient evidence to establish a trademark for purposes of 134.47. In that ruling Customs held that:
until further notice we will continue to accept a filed application with the U.S. Patent and Trademark Office as sufficient evidence of a trademark for the purposes of 19 CFR 134.47. However, if for some reason the application is denied, then the requirements of 19 CFR 134.46 will have to be complied with.

Based on the above ruling, since an application for registration of the trademark "Boston Accent" has been filed, the more lenient requirements of 19 CFR 134.47 apply here. Therefore, the country of origin need only appear in a conspicuous location preceded by words such as "Made in".

The only remaining issue is whether the proposed method of marking described above is acceptable. The country of origin marking "Made in Brazil" located on the two side panels of the box is conspicuously located in that it is easy to find and read. We note that the country of origin markings stand out since they appear in white on a dark purple background. Also, since other consumer information (size, style and color), appears on the two side panels a ultimate purchaser of the shoes would definitely see the origin marking upon a casual examination of the shoe box. The marking "Made in Brazil" is legible and permanently printed on the shoe box. Accordingly, we find that the proposed marking on the sample box satisfies the requirements of 19 U.S.C. 1304 and 19 CFR Part 134.

HOLDING:

The proposed method of marking on the sample shoe box in the manner described above, satisfies the requirements of 19 U.S.C. 1304 and 19 CFR Part 134.

Sincerely,

John Durant, Director

Previous Ruling Next Ruling