HQ 735533 - Country of origin marking of cards and tags printed with a trademark "Courreges Paris" containing jewelry manufactured in Canada; 19 CFR 134.47; application for trademark; HQ 734455 - United States International Trade Commision Rulings

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HQ 735533

December 16, 1994

MAR-2-05 CO:R:C:S 735533 AT

CATEGORY: MARKING

Mr. Gary Brunell
A. N. Deringer
173 W. Service Road
Champlain, New York 12919

RE: Country of origin marking of cards and tags printed with a trademark "Courreges Paris" containing jewelry manufactured in Canada; 19 CFR 134.47; application for trademark; HQ 734455

Dear Mr. Brunell:

This is in response to your letter dated February 1, 1994, on behalf of Keyes Creations ("Keyes"), requesting a country of origin ruling concerning cards and tags printed with a trademark "Courreges Paris" which contain jewelry manufactured in Canada. A sample card and tag 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 August 25, 1993. We regret the delay in responding.

FACTS:

You state that Keyes intends to import jewelry manufactured in Canada into the U.S. The jewelry will be imported affixed to either plastic cards or tags. For purposes of this ruling we will assume that the jewelry itself is not individually marked, but will be sold at retail affixed to either a plastic card or tag. The sample plastic card measures approximately 3 inches in length and 2 1/2 inches in width. The trademark "Courreges Paris" is printed on the front of the card in gold lettering approximately 9 points (a point is approximately .01384 inch or 1/72 of an inch). An adhesive label is affixed to the back of the card printed with the words "Made in Canada" in black lettering approximately 4 points. No other markings appear on the card. The sample tag measures approximately 1 1/16 inches in length and 11/16 inches in width. The trademark "Courreges Paris" is printed on the front of the tag in gold lettering approximately 5 points. An adhesive label is affixed to the back of the tag printed with the words "Made in Canada" in black lettering approximately 5 points. No other markings appear on the tag. You inquire as to whether the proposed country of origin marking on the sample card and tag satisfies the marking requirements of 19 U.S.C. 1304.

ISSUE:

Does the proposed method of marking on the sample card and tag 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, appears 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 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. In this case, the trademark "Courreges Paris" includes a name of a foreign country "Paris" other than the name of the country where the jewelry is manufactured "Canada".

You presented evidence that an application for the trademark "Courreges Paris" was filed with the U.S. Patent and Trademark Office on August 25, 1993. 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 "Courreges Paris" 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 methods of marking described above are acceptable. The country of origin marking "Made in Canada" located on the back side of both the card and tag is conspicuously located in that it is easy to find and read upon a casual examination. We note that the country of origin markings on both the card and tag stand out since they appear in black lettering on a white background. The marking "Made in Canada" is legible and permanently printed on the card and tag. Accordingly, we find that the proposed marking on the sample plastic jewelry card and tag satisfies the requirements of 19 U.S.C. 1304 and 19 CFR Part 134.

HOLDING:

The proposed method of marking the sample plastic jewelry card and tag in the manner described above, satisfies the requirements of 19 U.S.C. 1304 and 19 CFR Part 134.

A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.

Sincerely,

John Durant, Director

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