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HQ 559785




September 11, 1996

MAR-2-05 RR:TC:SM 559785 DEC

CATEGORY: MARKING

Mr. Arturo E. Dominguez adco i.t.s., Incorporated
902 Market Street
Laredo, Texas 78040

RE: Country of origin marking of all sports gym bag; 19 CFR 134.46; 19 CFR 134.47

Dear Mr. Arturo:

This is in response to your letter dated April 6, 1996, requesting a country of origin marking ruling on behalf of your client, Rooster Products, Incorporated, regarding the country of origin marking of an all sports gym bag. A sample of the gym bag was submitted with your request.

FACTS:

You state that Rooster Products, Incorporated, intends to import an all sports gym bag that is made in Mexico and bears the trademark "Oshman's Supersports USA."
You state that the letters "USA" are a part of the trademark. The gym bag has a sewn-in tag on one side panel with the words "Made in Mexico." The tag measures approximately one-half inch by one-half inch. You did not provide copies of the trademark registration with your ruling request.

ISSUE:

Whether the all sports gym bag described above bearing the letters "USA" as part of a trademark or trade name satisfies the country of origin marking requirements.

LAW AND ANALYSIS:

The marking statute, section 304, 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 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. 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. Inc., 27 CCPA 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. Customs has recognized that the presence of a geographic location other than the country in which the article was produced on an imported article or its container may mislead the ultimate purchaser as to the true country of origin. Therefore, in cases where the name of a location in the U.S. or the name of any foreign country or locality other than the country or locality in which the article was manufactured or produced appears on an imported article or its container, section 134.46, Customs Regulations (19 CFR 134.46), provides that 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. The purpose of this section is to prevent the possibility of misleading or deceiving the ultimate purchaser as to the actual origin of the imported good.

However, 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. or "United States" or "America" appear, 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.

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.
A trade name is

. . . descriptive of the manufacturer or dealer for protection in trade, to avoid confusion in business, and to secure the advantages of a good reputation and is applied more to the goodwill of a business than as an identification of a product [citation omitted].

A name used in trade to designate a particular business of certain individuals considered somewhat as an entity, or the place at which a business is located, or of a class of goods, but which is not a technical trade-mark either because not applied or affixed to goods sent into the market or because not capable of exclusive appropriation by anyone as a trade-mark.

BLACK'S LAW DICTIONARY 1339 (5th ed. 1979).

With regard to the matter currently under consideration, we are aware that Oshman's Supersports USA is a major sporting goods store with retail outlets throughout much of the United States. The words "Oshman's Superstores USA" on the two side panels of the gymbag do not trigger the special marking requirements of 19 CFR 134.46 because the word "USA" is used as part of a trade name and an ultimate purchaser would not reasonably construe such a reference on the gymbag to indicate the country of origin of the article. Accordingly, we find that the name "Oshman's Supersports USA" constitutes a trade name and the less stringent requirements of 19 CFR 134.37 are applicable. Therefore, the gymbag must be marked with its country of origin in a conspicuous location. The sample which has a sewn-in fabric label on the side of the gymbag may be found easily and read without strain by a potential ultimate purchaser. The sample gymbag is conspicuously marked.

HOLDING:

On the basis of the information and samples submitted, we find that the country of origin marking on the gymbags described above satisfies the marking 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
Tariff Classification Appeals

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