HQ 0735213 - Country of origin marking of packaging; designed in U.S.A.; American flag; conspicuous; 19 CFR 134.46 - United States International Trade Commision Rulings

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HQ 735213

June 23, 1993

MAR 2-05 CO:R:C:V 735213 LR

CATEGORY: MARKING

Paul E. Linet, Esq.
60 Massachusetts Avenue
Suite 105
Acton, MA 01720

RE: Country of origin marking of packaging; designed in U.S.A.; American flag; conspicuous; 19 CFR 134.46

Dear Mr. Linet:

This is in response to your letter dated June 9, 1993, on behalf of Tru-Fit Marketing Corp ("Tru-Fit"), requesting a ruling regarding the country of marking of certain retail packages.

FACTS:

Tru-Fit is considering imported finished neoprene consumer items. These items will be designed in the United States and made in China. In their imported condition, these items will be packed ready for sale at the retail level. The retail packaging in which the imported items will be displayed will depict a red, white and blue flag that resembles the flag of the United States. The flag measures approximately 9/16 inches x 5/16 inches. The word "Designed" is displayed immediately above the flag in capital letters of approximately 5 point type (a point is a unit of measurement approximately equal to .01384 inches or nearly 1/72 inch and all type sizes are multiples of this unit). The words "in USA" are displayed immediately below the flag in the same size capital letters. Approximately 1/4 inch below the flag, the words "Made in China" are displayed in capital letters of the same size. All the lettering is black on a white background. A sample label was submitted depicting this information. Also contained on the label is information about the product, the company name, and cleaning instructions. There is no indication where this label will appear on the retail package.

ISSUE:

Whether the submitted label satisfies the requirements of 19 U.S.C. 1304 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. Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. With regard to the conspicuousness and legibility requirements, section 134.41(b) requires that the country of origin marking be such that the ultimate purchaser is able to find the marking easily and read it without strain.

Articles for which the marking of the containers will reasonably indicate their origin are excepted from individual marking under 19 U.S.C. 1304(a)(3)(D) and 19 CFR 134.32(d). This exception applies only if the article in question is imported in a properly marked container and Customs is satisfied that the article will reach the ultimate purchaser in this original marked unopened container. Without an actual sample of the packaged product, we cannot determine whether this exception is applicable. Therefore, this ruling will address only the question of whether the marking on the label is satisfactory.

The Customs Service has recognized that the presence of a geographic location other than the country in which the article was produced on an imported article or its container may mislead the ultimate purchaser as to the true country of origin. Thus, in cases where words indicating possible origin other than the actual country of origin appear on the article, Customs requires that the country of origin marking shall appear in close proximity to and in at least comparable size letters to such words, and preceded by "Made in," "Product of," or other words of similar meaning. (See 19 CFR 134.46). The purpose of this regulation is to alleviate the possible confusion that is created by these words.

Customs has also determined that the presence of symbols associated with a country other than the country of origin may also mislead the ultimate purchaser as to the country of origin. This is especially true where the foreign symbols are more readily visible than the country of origin marking. Thus, in a ruling regarding shoes, where the shoes and the boxes prominently displayed several references to the United States, including a reproduction of the American flag as its lid, Customs determined that the country of origin marking on the inside of the heel of the shoe and on the bottom of the box was not conspicuous. See Headqaurters Ruling Letter (HRL) 729096, January 2, 1986.

In this case, the above described label satisfies the requirements of 19 CFR 134.46 since the country of origin is preceded by "Made in" and appears in close proximity and in comparable size letters at the words "Designed in U.S.A.". The only issue which remains is whether the country of origin marking is conspicuous in light of the depiction of the U.S. flag.

In HRL 733940, October 24, 1991, concerning the country of origin marking of pens, Customs announced various factors that should be considered in determining whether a particular country of origin marking is conspicuous within the meaning of 19 U.S.C. 1304 and 19 CFR 134.41. These factors include the size of the marking, the location of the marking, whether it stands out, and the legibility of the marking. In this regard, the ruling states that:
the size of the marking should be large enough so that the ultimate purchasers can easily see it without strain. The location of the marking should be in a place where the ultimate purchaser could expect to find the marking or where he/she could easily notice it from a casual inspection. Whether the marking stands out is dependent on where it appears in relationship to other print on the article and whether it is in contrasting letters to the background. The legibility of the marking concerns the clarity of the letters and whether the ultimate purchaser could read the letters of the marking without strain. No single factor should be considered conclusive by itself. Instead, it is the combination of these factors which determines whether the marking is acceptable. In some cases, a marking may be unacceptable even when it is in a large size because the letters are too hard to read or it is in a location where it would not be easily noticed. In other cases, even if the marking is small, the use of contrasting colors, which make the letters particularly stand out, could compensate to make the marking acceptable.

Applying these factors to the country of origin marking on the label, we find that the marking is acceptable. The "Made in China" marking appears in distinct capital letters that stand out from the white background. Unlike the boxes in 729096, which displayed a reproduction of the American flag as its entire lid, the flag here is relatively small. Moreover, the country of origin appears immediately below the flag in clear, readable black letters which stand out from its white background. We believe that any consumer who views the flag will also read the country of origin label. Therefore, the possibility for confusion is eliminated.

In light of the above considerations, we find that the submitted label is marked in a conspicuous manner and satisfies the requirements of 19 U.S.C. 1304 and 19 CFR 134.41(b) and 134.46. Assuming the label is securely affixed in a conspicuous location and the contents otherwise satisfy the marking requirements, the marking is acceptable.

HOLDING:

The country of origin marking on the labels 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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