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HQ 559748





June 12, 1996

MAR-2-05 RR:TC:SM 559748 DEC

CATEGORY: MARKING

Area Port Director
U.S. Customs Service
135 High Street, Room 350
Hartford, Connecticut 06103

RE: Application for Further Review of Protest No. 0401-96-100079 concerning country of origin marking of imported cigars; C.I.E. 442/44; C.I.E. 116/45;
C.I.E. 134/45; C.I.E. 1351/61; HRL 734648; HRL 735466; 19 CFR 134.46;
19 CFR 134.25

Dear Sir:

This is in reference to Protest No. 0401-96-100079 and the Application for Further Review dated February 9, 1996, timely submitted by Sharrets, Paley, Carter & Blauvelt, P.C. on behalf of Davidoff of Geneva (CT) Incorporated (Davidoff), against your issuance of marking notices and/or notices to redeliver in connection with the entry of imported cigars.

FACTS:

Davidoff is an importer of premium cigars. Counsel had filed a ruling request dated January 30, 1996, regarding the proper country of origin marking for imported cigars. Subsequently, we received the above-referenced Protest on the same issue. We consolidated the ruling request with the Protest now at issue. Customs has issued various marking notices to the Protestant stating that the inside of the boxes of cigars must be marked to comply with several Customs Information Exchange (C.I.E.) issuances dating back to 1944. Counsel and a representative from Davidoff met with members of our office on May 20, 1996.

The articles at issue are retail hinged lid boxes of wood or cardboard imported containing cigars, cigarillos, or mini cigarillos. Counsel states that virtually all of the articles at issue are sold in a box as one retail unit and that many of the boxes are
sealed until they reach the ultimate purchaser. Counsel and protestant also stated during the meeting that the cigars and cigarillos are never sold individually from the boxes in which they are imported. The four types of boxes at issue are described as follows:

1. Wooden box which measures approximately 6-13/16 inches wide by
1-5/16 inches high by 5-5/8 inches deep with a hinged top and brass closure and will contain 20 individually wrapped cigars. When imported, the brass closure may be opened, but the cigars are sealed in the box with an air tight cellophane wrapping. The phrase "Zino Relax Sumatra" is printed on the exterior of the box on the top, front, left-side, and right-side panels as well as on the inside of the lid. Counsel indicated at the May 20, 1996, meeting that the Protestant's parent company has applied for a trademark for "Zino Relax Sumatra". The country of origin (on the sample submitted - "Made in Switzerland") is printed on the bottom panel of the exterior of the box. On the inside of the lid the phrase "Special Selection Zino Relax Sumatra Humidor-Pack 100%Tobacco" is printed. The cigars contained in these boxes will virtually always be sold to the consumer in the box as one retail unit. Counsel indicated at the May 20, 1996, meeting that, in rare instances, authorized sellers of Davidoff products may open the retail containers and place the wrapped cigars in a wooden cigar display box. Counsel and the Davidoff representative explained that this display box is used by the tobacconist when discussing various types of cigars with customers. The wooden display box, as indicated in photographs submitted by counsel, are clearly and prominently marked with information about the country of origin of the particular cigar's wrapper, filler, and binder.

2. Wooden box which measures approximately 8 inches wide by 3-7/8 inches deep and 1-3/8 inches high. This box has a hinged top and is sealed using a small nail and will contain 100 unwrapped mini cigarillos when imported. The phrase "Davidoff Mini Cigarillos" is printed on the exterior of the box on the top. Written on the front of the box is "100% Tobacco Davidoff Special Selection." On the left-side and right-side panels, the phrase "100 Mini Cigarillos" is printed. The country of origin (on the sample submitted - "Made in Denmark") is printed on the back panel of the exterior of the box. On the inside of the lid, the phrase "Davidoff Mini Cigarillos" is printed. The cigarillos contained in these boxes will always be sold to the consumer in the box as one retail unit. The Davidoff representative indicated that the company does not believe it to be sanitary to break up the boxes of mini cigarillos and offers these articles for sale exclusively by the box.

3. Wooden box which measures approximately 4 inches wide by 3-7/8 inches deep and 1-3/8 inches high. This box has a hinged top and is sealed using a
small nail and will contain 50 unwrapped mini cigarillos when imported. This box will be completely wrapped in cellophane. These mini cigarillos are always sold by the box. The phrase "Davidoff Mini Cigarillos" is printed on the exterior of the box on the top. Written on the front of the box is "Davidoff 100% Tobacco Special Selection." On the left-side and right-side panels, the phrase "100 Mini Cigarillos" is printed. The country of origin (on the sample submitted - "Made in Denmark") is printed on the back panel of the exterior of the box. On the inside of the lid the phrase "Davidoff Mini Cigarillos" is printed.

4. A white cardboard box which measures approximately 3-5/8 inches wide by 3/8 inch high and 3-1/16 inches deep with a hinged top containing 10 unwrapped cigarillos. The box is wrapped completely in cellophane. The phrase "Made in Denmark" is printed on the bottom panel on the exterior of the box. The mini cigarillos contained in these boxes will be sold exclusively in their imported boxes.

ISSUE:

Whether the country of origin marking on the various containers of cigars and cigarillos as described above is in compliance with the 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. 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 (1940). Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. Section 134.31(b), Customs Regulations (19 CFR 134.41(b)), states that a marking should be at least sufficiently permanent to insure that, in any reasonably foreseeable circumstance, the marking shall remain on the article or its container until it reaches the ultimate purchaser. The ultimate purchaser in the U.S. must be able to find the marking easily and read it without strain.

In 1944, 1945, and 1961, Customs issued various C.I.E. letters regarding the country of origin marking requirements for cigars imported in boxes. In C.I.E. 442/44, dated September 28, 1944, it was stated that in order to insure that ultimate purchasers of either individual cigars or boxes of cigars may be apprised of the name of the country of origin of the cigars, marking to indicate such origin shall appear both on the inside of the lid of the box and on the outside of the box.

Later C.I.E. letters specifically stated that this marking requirement was applicable to cigars imported in "special" or "premium" containers with hinged lids. C.I.E. 116/45, dated March 13, 1945. In this document, Customs described some of these "special" or "premium" boxes as being made of natural cedar wood or handsome mahogany cabinets with a highly polished surface containing 50 to 100 cigars. In contrast, the boxes of cigars at issue in this protest contain only 20 full-sized cigars, 100 or fewer mini cigarillos, or only ten cigarillos and, while the wooden boxes are not inexpensive, they are not made of the same "special" or "premium" wood as was described in C.I.E. 116/45 nor are they highly polished.

Subsequently, C.I.E. 134/45, dated March 19, 1945, canceled C.I.E. 116/45. C.I.E. 134/45 stated that imported cigars in "special" or "premium" containers with hinged lids must be marked inside and outside in accordance with C.I.E. 442/44. This C.I.E. further provides that other special containers of cigars shall be marked on the outside of the container in a conspicuous place so the marking will be visible to a retail purchaser of the individual cigars. C.I.E. 1351/61 cited to the marking requirement first articulated in C.I.E. 442/44.

When cigar containers are made from a premium wood or are lavishly finished, they are more likely to be displayed with the lids open so that an ultimate purchaser may observe the premium container. It is the position of the Customs Service that this line of C.I.E.'s applies only to "special" or "premium" containers analogous to those described in C.I.E. 116/45. The cigar boxes at issue in this Protest are not "special" or "premium" cigar boxes analogous to those described in the C.I.E.'s.

Moreover, since the cigars and cigarillos are never sold individually from the boxes in which they are imported, the purpose for the required marking on the inside lid as set forth in the above C.I.E.'s does not exist under the facts of this case. We therefore find that the marking on the bottom panel of the box of 20 cigars is in a conspicuous location because the marking will be readily visible to an ultimate purchaser who inspects the cigar box. Similarly, the country of origin marking on the back panel of the mini cigarillo boxes containing 50 or 100 mini cigarillos and the cardboard box containing ten cigarillos is conspicuously marked as well.

While Customs generally does not consider a marking appearing on the bottom of a container to be in a conspicuous location (see Headquarters Ruling Letter (HRL) 734648, dated July 14, 1992), in HRL 735466, dated August 4, 1994, we concluded that various small appliances which were imported into the United States for domestic sale in retail boxes with dimensions akin to shoe boxes or, at most, twice that size, were properly marked. Although the retail boxes in HRL 7345466 were clearly marked "Made in Mexico" on the bottom panels, they were also marked on two side panels where U.S.-references (domestic addresses) appeared. Considering the relatively small size of the appliance boxes, their ease in handling, and the additional side panel markings, we allowed the bottom panel markings. In the instant case, the retail cigar boxes are significantly smaller and lighter than the articles addressed in HRL 735466, and an ultimate purchaser may more easily manipulate the cigar box to reveal the bold and stamped-in country of origin marking on the bottom panel of the box of 20 cigars. Similarly, the wooden boxes containing 100 mini cigarillos and the wooden box containing 50 mini cigarillos are conspicuously marked with the country of origin on the back panel of these containers. The marking on the bottom panel of the small and very light cardboard box containing 10 cigarillos is conspicuous and an ultimate purchaser may easily find the country of origin marking on the bottom panel of the cardboard container.

The phrase "Zino Relax Sumatra" is printed on the exterior of the box containing 20 cigars on the top, front, left-side, and right-side panels as well as on the inside of the lid. 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 United State appears, the article shall be legibly, conspicuously, and permanently marked to indicate the name of the country of origin of the article preceded by "Made in", "Product of", or other similar words, in close proximity 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 to meet the general standard of conspicuousness. Although 19 CFR 134.47 applies when a locality reference appears as part of a trademark, 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. Therefore, in this case, although only an application has been filed, Customs will allow the more lenient requirements of 19 CFR 134.47 to apply for purposes of this Protest.

In the May 20, 1996, meeting, counsel presented The Tobacco Encyclopedia published by the Tobacco Journal International. After a review of this document, Customs recognizes that the term Sumatra in the context of purchasing cigars does not readily connote that the cigars that are a product of Sumatra. Rather, a Sumatra cigar
is a generic term for light-colored cigars as compared to the dark or black Brazil cigars. In this case, the word "Sumatra" is used in the context of a trademark and Customs is satisfied that the word does not serve to confuse the ultimate purchaser of the origin of the cigars. We find the country of origin marking of the box of 20 cigars which appears on the bottom panel of the box to be a conspicuous location. Consequently, we find the country of origin marking on the box of 20 cigars to meet the requirements of 19 U.S.C. 1304 and 19 CFR Part 134.

In rare instances, an authorized seller of Davidoff products may open the retail containers of 20 cigars and place the wrapped cigars in a wooden cigar display box. Counsel and the Davidoff representative explained that this display box is used by the tobacconist when discussing various types of cigars with customers. The wooden display box is marked with information about the origin of the particular cigar's wrapper, filler, and binder. However, the origin of the cigars is not provided.

Section 134.25, Customs Regulations (19 CFR 134.25), requires that containers of repackaged J-List articles or articles incapable of being marked must be marked to indicate the country of origin of the contents by either the importer who repackages the articles or the purchaser or transferee of such articles who does the repacking, and that the importer must certify to the port director on entry that the repacked containers will be marked or that he will notify the purchaser or transferee of such marking requirements. In this case, the decorative wrapping of the individual cigar represents the cigar's container. Accordingly, the marking requirements of 19 U.S.C. 1304 and 19 CFR 134.11, mandate that the outermost container which includes the cigar wrapper in which the article will reach the ultimate purchaser must be marked in a conspicuous place as legibly, indelibly and permanently as its nature will permit. Any method of marking at any location will be acceptable as long as the country of origin will appear conspicuously on such containers. Consequently, the protestant must certify to the port director that to the extent that the imported cigars are removed from the marked containers in which the cigars are imported, the wrappers on cigars which are removed will be marked to indicate their country of origin.

The wood box containing 50 mini cigarillos with the country of origin denoted on the back panel of the wood box and the cardboard box containing 10 cigarillos with the country of origin denoted on the bottom panel of the cardboard package will be wrapped completely in cellophane when imported. Since these packages will be completely sealed in cellophane wrapping, a marking on the inside lid of these cigar boxes will not serve the ultimate purchaser since it will not convey origin information to the ultimate purchaser at the time of purchase. In situations where the article is completely sealed when it is sold at retail, the country of origin marking should appear conspicuously on the outermost retail container. After examining the samples submitted with this Protest, we find that these containers are conspicuously marked with their country of origin.

HOLDING:

The cigar boxes as described above are properly marked pursuant to 19 U.S.C. 1304. To the extent that the cigars are removed from the imported marked containers prior to reaching the ultimate purchasers, the protestant must comply with the certification requirements set forth in 19 CFR 134.25. Accordingly, the protest should be granted subject to compliance with 19 CFR 134.25.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director

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