HQ 559310 - Country of origin marking; Paint products; 19 CFR 134.46; 19 CFR 134.47; C.S.D. 90-31; - United States International Trade Commision Rulings

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HQ 559310

March 19, 1996

MAR-05 RR:TC:SM 559310 KKV

CATEGORY: MARKING

James C. Wickens, Esq.
Howard & Howard
The Pinehurst Center
Suite 101
1400 North Woodward Avenue
Bloomfield Hills. MI 48304-2856

RE: Country of origin marking; Paint products; 19 CFR 134.46; 19 CFR 134.47; C.S.D. 90-31;

Dear Mr Wickens:

This is in response to your letter dated July 5, 1995, on behalf of American Standox, Inc., which requests a ruling concerning the country of origin marking requirements for certain automotive paint products manufactured in Germany. Samples of the labels containing the proposed marking have been submitted.

FACTS:

American Standox, Inc., an American company incorporated in Delaware, is an importer of automotive paint products manufactured in Germany by Herberts, GmbH, located in Wuppertal, Germany. American Standox imports certain German-origin paint products under the label Herberts Standox. All products for which label samples have been submitted are manufactured and packaged in Germany. The samples of the proposed labels have been marked in the following manner:

SAMPLE 1: Exterior Cardboard Shipping Container Label

In addition to the marking "Herberts Standox," and a description of the type of paint contained therein, written in English, German, French and Spanish, the label is also marked "Herberts * Wuppertal * Germany" in contrasting bright green ink, centered horizontally along the lower edge of the label. The label is also marked vertically, along the right edge of the label, "Product of Germany" in lower-case boldface type. Additionally, the label is marked vertically, along the left edge of the label, with an alpha-numeric code, "23/304-USA" in boldface type, and additional alpha-numeric code, "Q/4/94/4" in lighter, smaller type.

SAMPLE 2: Individual Paint Can Labels

Like the previous sample, the front of both the paint can labels submitted are marked "Herberts Standox" and have a description of the type of paint contained therein (i.e., "Perlescent Mixing Color" or "Standocryl 2K HS Mixing Color") written in German, English, French and Spanish. Both samples are marked "Herberts * Wuppertal * Germany" in green ink, centered horizontally along the lower edge of the front label. Additionally, the front of each label is marked vertically, along the left edge of the label, with an alpha-numeric code, "22/215-USA" or "23/301-USA," in boldface type, and an additional alpha-numeric code in smaller, lighter type, "427993/Q/3/95/18" and "Q/4/95/24, respectively.

In addition to consumer information, written in English, and safety information, written in French and English, the back side of each of the labels is marked, "Product of Germany * Produced for and marketed by American Standox Inc., 47802 West Anchor Court, Plymouth, MI 48170." The words "Product of Germany" are written in boldface type in a letters which are slightly larger than the U.S. address.

SAMPLE 3: Prototype Individual Can Label

The prototype for the third individual paint can label contains country of origin marking identical to that described above, with similar alpha-numeric codes. The front of the label is marked "Herberts Standox" and has a description of the type of paint contained therein (i.e., "Standocryl 2K Plastic Clear Satin Gloss") written in German, English, French and Spanish. The sample is marked "Herberts * Wuppertal * Germany" in green ink, centered horizontally along the lower edge of the front label. The label is marked vertically, along the left edge of the label, with an alpha-numeric code, "22/327-USA, in boldface type, and an additional alpha-numeric code, "Q/5/95/1," in smaller, lighter type.

The back side of the label is similar to the two labels discussed above, with the exception of the consumer and safety information, which is provided in English only. The back side of the label is marked, "Product of Germany * Produced for and marketed by American Standox Inc., 47802 West Anchor Court, Plymouth, MI 48170." The words "Product of Germany" are written in boldface type in a letters which are slightly larger than the U.S. address.

ISSUE:

Does the proposed marking which appears on the sample labels for the paint satisfy the country of origin marking 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 United States 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 United States the English name of the country of origin of the article. By enacting 19 U.S.C. 1304, Congress intended to ensure that the ultimate purchaser would be able to know by inspecting the marking on the imported goods the country of which the goods are 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, 302 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. One of the exceptions to the general marking requirement is codified in 19 U.S.C. 1304(a)(3)(D) (as implemented by 19 CFR 134.32(d)), which provides that an article may be excepted from marking if the marking of its container will reasonably indicate its origin to the ultimate purchaser. 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 United States is able to find the marking easily and read it without strain. Of concern here are the requirements of two related provisions of the marking regulations, section 134.46, Customs regulations (19 CFR 134.46) and section 134.47, Customs regulations (19 CFR 134.47).

Specifically, 19 CFR 134.46 requires that, in instances where 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. 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 (See HQ 708994, dated April 24, 1978). The more restrictive requirements of 19 CFR 134.46 are designed to alleviate the possibility of any misleading of an ultimate purchaser with regard to the country of origin of an imported article, if such article or its container includes language which may suggest a U.S. origin (or other foreign locality not the correct country of origin). However, Customs has held that, under certain conditions, geographic names appearing in connection with imported articles do not necessarily trigger the requirements of 19 CFR 134.46 if the context in which the names are used is such that confusion by the ultimate purchaser regarding country of origin is not possible (See C.S.D. 90-31, dated December 20, 1989).

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 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 provisions is that 19 CFR 134.46 requires that the name of the actual country of origin appear "in close proximity" to the U.S. reference and in lettering of at least comparable size. By contrast, 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 in the U.S. or "United States" or "America" appears on the imported article, the name of the 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. With regard to the matter currently under consideration, in the absence of evidence indicating that the name of the U.S. importer, American Standox, constitutes a trade name, trademark or souvenir mark, the less stringent requirements of 19 CFR 134.37 are inapplicable, and the proposed marking must adhere to the stricter requirements of 19 CFR 134.46.

Here, although the external cardboard shipping container label (sample 1) and the front side of all of the paint can labels submitted (sample 2 and sample 3), each contain a non-origin locality reference, i.e., the letters "USA" in the alpha-numeric printer's code, it is inconspicuous both by its placement on the label and the size of its typeface. In the context in which the letters appear, we find nothing in this U.S. reference that connotes origin in any manner. Having thus concluded that the non-origin locality reference would not mislead or deceive an ultimate purchaser as to the country of origin of the imported article, we find that the special marking requirements of 19 CFR 134.46 are not triggered, and the origin marking needs merely to satisfy the general requirements of permanency, legibility and conspicuousness under 19 U.S.C. 1304 and 19 CFR Part 134. All of the sample labels submitted have the words, "Herberts * Wuppertal * Germany" centered horizontally along the lower edge of the label, written in contrasting bright green ink. Additionally, Sample 1, the exterior cardboard shipping container label, is marked vertically, along the right edge of the label, "Product of Germany" in lower-case boldface type. It is our determination that these markings are sufficient to satisfy the requirements of 19 U.S.C. 1304 and 19 CFR Part 134. Therefore, although the external cardboard shipping container label (sample 1) is also marked vertically, along the right edge of the label, "Product of Germany" in lower-case boldface type, this information is helpful, but not required.

The back side of the paint can labels (sample 2 and sample 3) also contain a non-origin locality reference, the presence of a U.S. address. Unlike the use of the letters "USA" in an alpha-numeric printer's code, the address is used in a context more likely to create confusion as to the origin of the product. Thus, we find the special marking requirements of 19 CFR 134.46 are triggered by the inclusion of the U.S. address. The country of origin designation on the back side of all the labels is identical. The words "Product of Germany" are printed in boldface type in letters which are slightly larger than the non-origin locality information. Further, this designation of origin immediately precedes the U.S. address. Moreover, any residual potential for confusion is dispelled by the use of the phrase "Produced for and marketed by American Standox, Inc." Thus, as presented, it is our determination that the marking on the back side of the paint cans fully satisfies the requirements of 19 CFR 134.46.

HOLDING:

A non-origin locality geographical reference, "USA," which is part an alpha-numeric printer's code printed in an inconspicuous location does not trigger the more stringent marking requirements of 19 CFR 134.46. Therefore, the phrase "Herberts*Wuppertal*Germany" printed in contrasting bright green ink, centered horizontally along the lower edge of the label is sufficient to satisfy the general marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134.

Where the country of origin designation "Made in Germany" is printed in boldface type in letters which are slightly larger than a non-origin locality reference, and this country of origin designation immediately precedes the notation that the merchandise was "Produced for and marketed by American Standox, Inc." and also precedes the non-origin U.S. address, such country of origin designation fully satisfies the special marking requirements of 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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