HQ 0735428 - Country of origin marking of jewelry mounted on cards and imported from Canada; hangtags; trademarks; trade names; 19 CFR 134.41; 19 CFR 134.47; HQ 735024 - United States International Trade Commision Rulings

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HQ 735428
May 12, 1994

MAR-2-05 CO:R:C:V 735428 RSD

CATEGORY: MARKING

Edwin Bullock, Esq.
Kuhn and Muller
405 Lexington Avenue
32nd Floor
New York, New York 10174-3201

RE: Country of origin marking of jewelry mounted on cards and imported from Canada; hangtags; trademarks; trade names; 19 CFR 134.41; 19 CFR 134.47; HQ 735024

Dear Mr. Bullock:

This is in response to your letter dated November 8, 1993, on behalf Courreges Design, requesting a ruling on the country of origin marking requirements for jewelry mounted and sold on cards. Samples of the jewelry mounted on the cards were submitted. We have also received a copy of an application for a trademark registration with United States Patent and Trademark Office and a copy from that agency of a document acknowledging the receipt of an application requesting a trademark.

FACTS:

Courreges Design is a French joint stock company with its principal place of business located in Paris, France. Courreges has granted a license to "Manufacture de Bijoux Keyes, Inc." of Montreal, Canada to manufacture jewelry bearing the COURREGES PARIS trademark and to distribute the jewelry in the United States.

The sample jewelry are a pair of earrings and a pin. These samples are mounted on white plastic backing cards on which we assume that they will be sold. On each card, above the jewelry the word "courreges" is printed in gold letters. On bottom of the card the word "paris" is also printed in gold letters. On back of each card there is a white sticker with a number and the words "MADE IN CANADA" printed on it in black letters of about 5 points. (A point is approximately .01384 inches or 1/72 of an inch). In addition, there is a plastic hangtag attached to the jewelry by an elastic string. The front of the tag reads in gold raised letters mounted into the plastic "courreges paris". Above the "courreges" is a design logo. On the back of the tag is the same sticker as on the back of the cards, with a number and the words "MADE IN CANADA" printed in black letters of about 5 points. The string tag appears to be securely attached to the jewelry.

Courreges has filed an application for a trademark/service mark of the "Courreges Paris" Trademark with the United States Patent and Trade Office. Acknowledgement of receipt of the application by the Patent and Trademark Office was submitted.

ISSUE:

Does marking on the back of the card and the hangtag satisfy the country of origin marking requirements set forth in Section 304 of the Tariff Act of 1930, as amended?

Does the use of the marking "Courreges Paris" Trademark trigger the requirements of 19 CFR 134.46 or 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.

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.

Section 134.47, Customs Regulations (19 CFR 134.47), 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 exists.

The country of origin marking requirements for a "good of a NAFTA country" are also determined in accordance with Annex 311 of the North American Free Trade Agreement ("NAFTA"), as implemented by section 207 of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat 2057) (December 8, 1993) and the interim amendments to the Customs Regulations published as T.D. 94-4 (59 Fed. Reg. 109, January 3, 1994) with corrections (59 Fed. Reg. 5082, February 3, 1994) and T.D. 94-1 (59 Fed. Reg. 69460, December 30, 1993). These interim amendments took effect on January 1, 1994, to coincide with the effective date of the NAFTA. The Marking Rules used for determining whether a good is a good of a NAFTA country are contained in T.D. 94-4 (adding a new Part 102, Customs Regulations). The marking requirements of these goods are set forth in T.D. 94-1 (interim amendments to various provision of Part 134, Customs Regulations). For the purposes of this ruling we will assume that the jewelry is a product of Canada, and therefore fall under the marking requirements for goods of a NAFTA country.

19 CFR 134.44 specifically allows other forms of marking to be used for country of origin marking including hang tags, stating:

(c) Articles marked with tags. When tags are used they must be attached in a conspicuous place and in a manner which assures that unless deliberately removed they will remain on the article until it reaches the ultimate purchaser.

Customs frequently has allowed alternative methods of marking, such as the use of hangtags or pressure sensitive labels provided that the alternative method used is conspicuous, legible and, permanent.

Upon review of the samples, we find that the country of origin markings on adhesive stickers on the back of the backer cards and the back of a plastic hangtag are sufficiently conspicuous and legible to satisfy the requirement of 19 CFR 134.41 and 19 U.S.C. 1304. We believe that the markings will be observed by an ultimate purchaser of the jewelry through a casual examination of the merchandise before making a purchase. This is especially the case because the marking is in two locations. We also note that the marking is in print large enough and clear enough that it can be read without strain. We also find that the marking will remain on the jewelry in all foreseeable circumstances unless deliberately removed.

The second issue presented in this case is whether the proposed marking on the back of the backer card and hangtag is an acceptable country of origin marking in view of the fact that the words "courreges paris" appear on the front side of the card and the hangtag. The question that arises is whether these words trigger the additional marking requirements of 19 CFR 134.46 or the slightly less restrictive requirements of 19 CFR 134.47. Customs has previously ruled that the filing of an application for trademark registration with the United States Patent Trademark Office is sufficient to establish a trademark for purposes of 19 CFR 134.47. See HQ 734455 (July 1, 1992). In this case, proof of an application for a trademark for the marking "COURREGES PARIS" has been presented. Thus the requirements of 19 CFR 134.47 would apply rather than the requirements of 19 CFR 134.46. However, if for some reason the application is denied, then the requirements of 19 CFR 134.46 will have to be complied with.

Under 19 CFR 134.47, the country of origin marking only needs to meet the general standard of conspicuousness. In HQ 734644 (July 1, 1992), Customs ruled that a country of origin marking on the back of a hangtag satisfied the "conspicuous location" requirements of 19 CFR 134.47, notwithstanding that there was a prominent reference to a geographical place other than the country of origin, "NAPA", on the front of the hangtag. We ruled that although the "NAPA VALLEY" references were more conspicuous than the country of origin markings, the origin markings satisfied the requirements of 19 CFR 134.47 because they were quite prominent and easy to find. Similarly, in this case the country of origin markings are large enough and prominent enough that the ultimate purchaser should have no trouble finding and reading them. Therefore, the origin markings satisfy the "conspicuous location" requirements of 19 CFR 134.47. We also note that the country of origin is preceded by the words "MADE IN" as required by 19 CFR 134.47.

HOLDING:

The use of a hangtag and an adhesive sticker on the back of a jewelry backer card is acceptable to mark the country of origin of jewelry sold at retail on a backer card. The country of origin markings are in conspicuous locations and are legible. "Courreges Paris" will qualify as a trademark under 19 CFR 134.47. The country of origin markings on the hangtag and on back of the backer card comply with the requirements of 19 CFR 134.47.

Sincerely,

John Durant, Director

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