HQ 0735373 - Country of origin marking for pens; conspicuous; legible; 19 CFR 134.41; 733940; 735111 - United States International Trade Commision Rulings

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HQ 735373
April 8, 1994

MAR-2-05 CO:R:V:C 735373 RSD

CATEGORY: MARKING

District Director of Customs
PO Box 619050
1205 Royal Lane
Dallas, Texas 75261

RE: Country of origin marking for pens; conspicuous; legible; 19 CFR 134.41; 733940; 735111

Dear Sir:

This is in response to your memorandum dated September 21, 1993, forwarding the request for internal advice from DJS International Services Inc., on behalf of American National Supply Co., concerning the country of origin marking of imported ball point pens. We have received the sample pen. We regret the delay in responding to your request.

FACTS:

American National Supply Co. of Arlington, Texas is importing ball point pens. The body of the sample pen is a maroon color with a black tip and gold color trim. The ball point of the pen is covered by a cap which snaps into place. The cap has a gold colored metallic clip. The side of the metal clip is stamped with the word "TAIWAN", in a non-contrasting color. The size of the marking is approximately 4 points (a point is a unit of measurement approximately equal to 0.01384 inches or nearly 1/72 inch and all type sizes are multiples of this unit). The letters in the word "TAIWAN" are close together and are not clear and distinct, thus producing a marking which is difficult to read.

ISSUE:

Is the country of origin marking on the sample pen sufficiently conspicuous and legible to satisfy the requirements of the country of origin marking law?

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 (1940). 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. As provided in section 134.41(b), Customs Regulations (19 CFR 134.41(b)), 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 HQ 733940, October 24, 1991, we indicated that there are certain factors that need to be considered in determining if the country of origin marking on an article, such as a pen, is conspicuous within the meaning of 19 CFR 134.41 and 19 U.S.C. 1304. Among the factors that should be considered is the size of the marking, the location of the marking, whether the marking stands out, and the legibility of the marking. The size of the marking should be large enough so that the ultimate purchasers can easily see the marking without strain. The location of the marking should be in a place on the pen where the ultimate purchaser could expect to find the marking or where he/she could easily notice it from a causal 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 in determining whether a marking meets the conspicuous requirement of 19 CFR 134.41 and 19 U.S.C 1304. 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. This analysis to determine whether a marking was conspicuous and legible was most recently applied to the marking of pens in HQ 735111 (October 15, 1993).

In applying these factors to the sample pen, we first find that the size of the marking, about 4 point type, is small and difficult to see. The ultimate purchaser is likely to have to strain to see the marking. We also note that the country of origin marking is not in a contrasting color and does not stand out. Moreover, the letters are close together and not clear and distinct, thus producing a marking that is difficult to read. With respect to the location of the marking on the pen, we find that an ultimate purchaser is not likely to notice it on the side near the bottom of the clip from a causal examination of the pen. Because of reflection, to see the marking it is also probably necessary to hold the pen and the clip up to a light. Based on the combination of these factors, we find that the country of origin marking on the sample pen does not satisfy the requirements of 19 CFR 134.41 and 19 U.S.C. 1304. Accordingly, we find that the marking on the sample pen is not acceptable.

If the marking can not be made legible and conspicuous through stamping, an alternative method of marking must be used.

HOLDING:

The country of origin marking stamped on the side of the ball point pen clip is not sufficiently legible and conspicuous to satisfy 19 CFR 134.41 and 19 U.S.C. 1304 and is not acceptable.

This decision should be mailed by your office to the internal advice requestor no later than 60 days from the date of this letter. On that date the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Lexis, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director

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