HQ 559436 - Modification of HRL 559118; Country of origin marking of wearing apparel; 19 CFR 134.47; application to register trademark - United States International Trade Commision Rulings

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HQ 559436

October 11, 1995

MAR-2-05-2 R:C:S 559436 BLS

CATEGORY: MARKING

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

RE: Modification of HRL 559118; Country of origin marking of wearing apparel; 19 CFR 134.47; application to register trademark

Dear Mr. Pellegrini:

This is in reference to your letter dated September 14, 1995, on behalf of Phillips-Van Heusen Corporation ("PVH"), requesting that Customs modify Headquarters Ruling Letter (HRL) 559118 dated August 18, 1995, which concerned country of origin marking requirements of certain wearing apparel. We will restrict our response to the specific issue raised in your request. FACTS:

The subject apparel consists of upper body outerwear, including sweatshirts, T-shirts, polo shirts, and rugby shirts. Each of the garments will display the insignia "GANT USA" in three forms. The insignia which is the sole subject of your request consists of an embroidered label with the word "GANT" in letters approximately 1/4 inch in height superimposed on a shield with "USA" at the top in letters approximately 3/16 inch in height. This insignia will be located in the inside center neck area of the upper body garment. The garment will also have a sewn-in fabric label on the inside neck area which sets forth the country of origin in letters approximately 3/32 inch in height. On the sample shirt, this label is off-center to the right (when looking at the front of the shirt), so as not to obscure the insignia.

You state that since the issuance of HRL 559118, PVH has filed an application to register the insignia as a trademark with the United States Patent and Trademark Office. As a result, you believe that HRL 559118 should be modified to reflect that the insignia should trigger the requirements of section 134.47, Customs Regulations (19 CFR 134.47), rather than section 134.46. You have also advised telephonically that PVH is considering moving the fabric label to a location on the inside of the neck area which will not be in the same location on the neck on the sample shirt.

ISSUE:

Whether, in the instant case, the insignia on the inside neck of the subject garments triggers the requirements of 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 (or its container) imported into the United States shall be marked in a conspicuous place as legibly, indelibly and permanently as the 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 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.

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 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 is less stringent, providing that, when as part of a trade name, trademark or souvenir mark, the name of a country 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.

In HRL 559118, we found that the "GANT USA" insignia triggered the more stringent standard of conspicuousness of 19 CFR 134.46, based on your statement that the "GANT USA"
insignia was not part of a trade name or registered trademark. The issue which we must now address is whether the "GANT USA" insignia will trigger 19 CFR 134.47 rather than 19 CFR 134.46, under circumstances where PVH has filed an application for a trademark with the United States Patent and Trademark Office. Copies of the application and the receipt issued by the Patent and Trademark Office, dated September 13, 1995, are submitted with your request.

In prior cases, Customs has accepted a filed application with the U.S. Patent and Trademark Office as sufficient evidence of a trademark for purposes of 19 CFR 134.47 since the regulation does not specify what evidence is needed to establish a trademark. However, if the application is denied, the requirements of 19 CFR 134.46 will need to be satisfied. See HRL 558741 dated January 4, 1995, and HRL 734455 dated July 1, 1992. Therefore, in the instant case, although only an application has been filed, Customs will allow the more lenient requirements of 19 CFR 134.47 to apply.

Since you advise that PVH is considering moving the fabric label containing country of origin information to another location in the inside neck area, and therefore are not requesting Customs determination as to the adequacy of the marking on the submitted sample shirt, we are modifying HRL 559118 to reflect only that the "GANT USA" insignia triggers 19 CFR 134.47 in the instant situation. At your request, we refrain from any subsequent determination that the marking on the sample garment complies with the requirements of 19 CFR 134.47. To obtain a ruling regarding the adequacy of a specific country of origin marking, you must submit another sample reflecting the actual manner in which the garment will be marked.

HOLDING:

A filed application with the U.S. Patent and Trademark Office will be accepted as sufficient evidence of a trademark for purposes of section 134.47, Customs Regulations (19 CFR 134.47). Therefore, the insignia on a garment with the words "GANT USA" will trigger the country of origin marking requirements of 19 CFR 134.47, rather than the more stringent requirements of 19 CFR 134.46. However, if the application is denied, the requirements of 19 CFR 134.46 will need to be satisfied. HRL 559118 is modified accordingly.

Sincerely,

John Durant, Director

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