HQ 559118 - Country of origin marking of wearing apparel; conspicuous location; comparable size; decoration; trademark; 19 CFR 134.47; HRL 734876 - United States International Trade Commision Rulings

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HQ 559118

August 18, 1995

CLA-2 R:C:S 559118 BLS

CATEGORY: MARKING

John B. Pellegrini, Esq.
Ross & Hardies
65 East 55th Street
New York, New York 10022-3219

RE: Country of origin marking of wearing apparel; conspicuous location; comparable size; decoration; trademark; 19 CFR 134.47; HRL 734876

Dear Mr. Pellegrini:

This is in reference to your letter dated March 27, 1995, on behalf of Phillips Van Heusen Corporation, requesting a ruling concerning the country of origin marking requirements for certain wearing apparel.

FACTS:

The subject apparel consists of a wide variety of outerwear including sweatshirts, T-shirts, polo shirts, rugby shirts, and knit pants. Each of the garments will display the insignia "GANT USA". The insignia will be in three forms: 1) an embroidered label with the word "GANT" in letters approximately 1/4 inch in height superimposed on a shield with the letters "U.S.A." at the top in letters approximately 3/16 inch in height; 2) a smaller but similarly embroidered label with the U.S.A. in letters approximately 3/32 in height; and 3) the phrase "GANT USA" in letters 2 inches in height. These insignia will appear in various locations on various garments. The first insignia will appear in the neck, on the chest, on the sleeve, on the lower left front, and, in the case of knit pants, on the rear pocket. The smaller insignia will appear on the chest and sleeve. The third insignia will appear on the sleeve. The upper body garments will have a sewn-in label in the neck which sets forth the country of origin in letters approximately 3/32 inch in height. On the submitted sample, the first insignia, with the word "U.S.A." in letters approximately 3/16 inch in height, is embroidered directly in the middle of the neck area. A sewn-in label at the neck sets forth the country of origin in letters approximately 3/32 inch in height. This label is off-center to the right (when looking at the front of the shirt), so as not to obscure the insignia.

ISSUE:

What are the country of origin marking requirements for the subject wearing apparel?

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 (or its container) imported into the United States shall be marked in a conspicuous place as legibly, indelibly and permanently as he nature of the article (or its container) will permit, in such a manner as to indicate to the ultimate purchaser in the United States 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.

The primary purpose of the country of origin marking statute 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 CCPA 297, C.A.D. 104 (1940). 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 is able to find the marking easily and read it without strain. Section 134.1(d), Customs Regulations (19 CFR 134.1(d)), defines the "ultimate purchaser" generally as the last person in the U.S. who will receive the article in the form in which it was imported, or, in the case of a good of a NAFTA country, the last person in the U.S. who purchases the good in the form in which it was imported.

The initial issue which must be addressed is whether the words "GANT USA" embroidered in various locations on the subject garments are potentially misleading to the ultimate purchaser as to the actual country of origin of the imported article.

In cases where a reference to a locality other than the country of origin appears on imported merchandise, the special marking requirements set forth in sections 134.46 and 134.47, Customs Regulations (19 CFR 134.46 and 19 CFR 134.47), may be triggered. The purpose of both provisions is the same, namely to prevent the ultimate purchaser from being misled or deceived when the name of a country or place other than the country of origin appears on an imported article or its container. The critical difference between the two is that section 134.46, Customs Regulations (19 CFR 134.46), requires that the name of the actual country of origin appear "in close proximity" to such words and in lettering of at least comparable size. By contrast, section 134.47, Customs Regulations (19 CFR 134.47), is less stringent, providing that when as part of a trade name, trademark or souvenir mark, the name of a location other than the country of origin appears, the name of the actual country of origin must appear in close proximity or "in some other conspicuous location." In other words, the latter provision triggers only a general standard of conspicuousness. In either case, the name of the country of origin must be preceded by "Made in", "Product of", or other similar words. You advise that in the instant case, none of the insignias which use the words "GANT USA", or "GANT" superimposed on a shield with the
letters "U.S.A." are part of a trade name or registered trademark. Therefore, the more stringent standard of conspicuousness of 19 CFR 134.46 is applicable.

In applying 19 CFR 134.46, Customs has often distinguished cases where a place other than the country of origin on an imported article is found unlikely to confuse the ultimate purchaser as to the country of origin of the article. For example, in Headquarters Ruling Letter (HRL) 734876 dated May 6, 1993, Customs held that the "GANT American Collection" insignia to be embroidered on the rear panel of a jacket was part of the design of the jacket and therefore was unlikely to confuse the ultimate purchaser as to the country of origin. See also HRL 723604 dated November 3, 1983, where Customs held that the letters "USA" displayed on imported men's bikini-style bathing trunks did not trigger the requirements of 19 CFR 134.46 because such marking was used as a symbol or decoration and would not be reasonably construed as indicating the country of origin of the article on which it appeared. As applied to the instant case, we find that where the insignia with the words "GANT USA", or the word "GANT" superimposed on a shield with the letters "U.S.A." are located on the chest, sleeve, on the lower left front, of the various garments, and, in the case of the knit pants, on the rear pocket, the requirements of 19 CFR 134.47 are not triggered because such marking is used as a symbol or decoration and would not be reasonably construed as indicating the country of origin of the particular garment. However, the same rationale does not apply to the insignia located on the inside of the neck area, which contains the letters "U.S.A." on a shield, with "GANT" superimposed thereon. This insignia is not visible when the garment is worn, and thus is not part of the garment's design. Therefore, in accordance with 19 CFR 134.46, the name of the actual country of origin must appear in "close proximity" to "U.S.A." and be of lettering of at least comparable size. As noted, country of origin marking displaying the words "MADE IN HONG KONG" on the sample shirt is found on a fabric label in the neck area off-center to the right (when looking at the front of the shirt), which is the requisite location for country of origin labels for shirts, T-shirts, jackets, etc., as described in T.D. 54640(6). (Such marking must be affixed "on the inside center of the neck midway between the shoulder seams or in that immediate area...." See T.D. 54640(6).)

In this regard, we find that the country of origin marking on the sample shirt does not comply with the regulatory requirements. While we find that the words "MADE IN HONG KONG" are in close proximity to the letters "U.S.A.", being located approximately one inch to the right of these letters, the "U.S.A." lettering is approximately 3/16 inch in height, in contrast to the words "MADE IN HONG KONG", which are in letters approximately 3/32 inch in height. Therefore, the letters are not "of at least comparable size" to the U.S. location and do not satisfy the strict requirements of 19 CFR 134.46.

HOLDING:

Embroidered labels with the words "GANT USA", or with the word "GANT" superimposed on a shield with the letters "U.S.A." located on the chest, sleeve, and lower left front of various shirts, and on the rear pocket of knit pants, are considered part of the design of the garments and are unlikely to confuse the ultimate purchaser as to the country of origin of the articles. Therefore, such marking will not trigger the requirements of section 134.46, Customs Regulations (19 CFR 134.46), because the marking would not be reasonably construed as indicating the country of origin of the article on which it appears.

However, where the shield insignia with the letters "U.S.A." as on the sample shirt is located on the inside center of the neck area, the label is not visible when the shirt is worn and thus is not considered part of the design of the garment. Further, the ultimate purchaser will normally look at the neck area to ascertain country of origin and other information, such as shirt size and fabric content, and therefore may be confused by reference to a U.S. location, depending on whether conspicuous country of origin information is located in close proximity thereto. Therefore, the letters "U.S.A." appearing on the neck area will trigger the requirements of 19 CFR 134.46.

In connection with the submitted sample, we find that the sewn-in label with country of origin information, located in the neck area, is in close proximity to the "U.S.A." lettering since it is approximately one inch to the right of such lettering. However, such country of origin lettering is not in "at least a comparable size" to the U.S. location, and therefore must be changed to comply with the size standard set forth under 19 CFR 134.46.

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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