HQ 559963 - Country of origin marking of short sleeve shirts printed with a trademark "Regatta New York" which are manufactured in India; 19 CFR 134.47; application for trademark. - United States International Trade Commision Rulings

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HQ 559963

August 2, 1996

MAR-2-05 RR:TC:SM 559963 AT

CATEGORY: MARKING

Harold I. Loring, Esq.
Grunfeld, Desiderio, Lebowitz & Silverman 12 East 49th Street
New York, New York 10017

RE: Country of origin marking of short sleeve shirts printed with a trademark "Regatta New York" which are manufactured in India; 19 CFR 134.47; application for trademark.

Dear Mr. Loring:

This is in response to your letter dated January 5, 1996, on behalf of Regatta (U.S.A.) L.L.C. ("Regatta"), requesting a country of origin ruling concerning short sleeve shirts which are marked with a trademark "Regatta New York" but which are manufactured in India. A sample shirt marked with the proposed country of origin marking was submitted for our review. You have also submitted a photocopy of an application for trademark, filed with the U.S. Patent and Trademark Office on January 3, 1996.

FACTS:

You state that Regatta intends to import 100 percent cotton short sleeve shirts from India. A sewn-in label is affixed to the inside center of the neck midway between the shoulder seams of the shirt marked with the words "Made in India" in white lettering of approximately 5 point (a point is approximately .01384 inch or 1/72 of an inch). Another sewn-in label is affixed approximately one inch directly below marked with the trademark "Regatta New York". The trademark "Regatta New York" also appears on an applique at the top of the left shirt pocket and is die-stamped on metal rivets located at the corners of the chest pockets. A hang tag is pinned to the shirt (the hang tag pinned to the sample shirt hangs at the front center of the shirt). The trade mark "Regatta New York" is printed on the front side of the hang tag. On the back of the hang tag, the following language appears: "Satisfaction Guaranteed. Regatta Quality Assurance Dept. 1450 Broadway, New York, NY 10018". Other information, such as the size and the statement "A portion of the proceeds from the sale of this garment will be donated to various children's and educational charities" also appears on the back of the hang tag. You inquire as to whether the proposed country of origin marking on the sample shirt satisfies the marking requirements of 19 U.S.C. 1304.

ISSUE:

Is the proposed method of marking the sample shirt as described above an acceptable country of origin marking for the imported shirts under 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 U.S. 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 U.S. the English name of the country of origin of the article. The Court of International Trade stated in Koru North America v. United States, 701 F. Supp. 229, 12 CIT 1120 (CIT 1988), that "in ascertaining what constitutes the country of origin under the marking statute, a court must look at the sense in which the term is used in the statute, giving reference to the purpose of the particular legislation involved. The purpose of the marking statute is outlined in United States v. Frielaender & Co., 27 CCPA 297 at 302, C.A.D. 104 (1940), where the court stated that: "Congress intended 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."

Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. Section 134.41(b), Customs Regulations (19 CFR 134.41(b), mandates that the ultimate purchaser in the U.S. must be able to find the marking easily and read it without strain. In addition, section 134.46, Customs Regulations (19 CFR 134.46), requires that when 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. The purpose of 19 CFR 134.46 is to prevent the possibility of misleading or deceiving the ultimate purchaser as to the origin of the imported article. 19 CFR 134.47 requires a slightly less restrictive marking than 134.46 when the location name other than the country of origin appears as part of a trademark. Under 19 CFR 134.47, when the name of a place other than the country of origin appears as part of a trademark or trade name or as part of a souvenir marking, the name of the actual country of origin must appear in close proximity to the place "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 meet the general standard of conspicuousness. In either 134.46 or 134.47, the name of the country of origin must be preceded by "Made in", "Product of", or words of similar meaning. See HQ 734175 (February 24, 1992); HQ 734277 (December 24, 1991).

The language of 19 CFR 134.47 pertains to a trademark or trade name with a location in the United States. In this case, the trademark "Regatta New York" includes a U.S. location.

You presented evidence that an application for the trademark "Regatta New York" was filed with the U.S. Patent and Trademark Office on January 3, 1996. You advise that it is still pending. In HQ 734455 (July 1, 1992), Customs considered whether the mere filing of a trademark registration was sufficient evidence to establish a trademark for purposes of 134.47. In that ruling Customs held that:
until further notice we will continue to accept a filed application with the U.S. Patent and Trademark Office as sufficient evidence of a trademark for the purposes of 19 CFR 134.47. However, if for some reason the application is denied, then the requirements of 19 CFR 134.46 will have to be complied with.

Based on the above ruling, since an application for registration of the trademark "Regatta New York" has been filed, the more lenient requirements of 19 CFR 134.47 apply here. Therefore, the country of origin need only appear in a conspicuous location preceded by words such as "Made in".

The only remaining issue is whether the proposed method of marking described above is acceptable. The country of origin marking "Made in India" which is printed on a sewn-in label affixed to the inside center of the neck midway between the shoulder seams of the shirt is conspicuously located in that it is easy to find and read. Also, the location of the country of origin marking satisfies the marking requirements of T.D. 54640(6) which provides that:

..wearing apparel such as shirts, blouses, coats, sweaters, etc. must be legibly and conspicuously marked with the name of the country of origin by means of a fabric label or label made from natural or synthetic film sewn or otherwise permanently affixed on the inside center of the neck midway between the shoulder seams or in that immediate area...

With respect to the U.S. address "1450 Broadway New York, NY" which appears on the back of the hang tag, we find that the U.S. address does not trigger the special marking requirements of 19 CFR 134.46. In our opinion, the U.S. address is only being used as part of a warranty statement to the ultimate purchaser of the shirt. In HQ 734180 dated September 10, 1991, Customs considered whether a U.S. address printed on the back of a hang tag affixed to wearing apparel triggered the requirements of 19 CFR 134.46. Finding that the U.S. address was not intended to deceive or mislead the ultimate purchaser and that there was no possibility that the ultimate purchaser would be confused by the presence of the address since the address was associated with domestic quality assurance/warranty program, Customs held that 19 CFR 134.46 did not require that the country of origin information appear beneath the U.S. address. Similarly, in this case, we find that an ultimate purchaser would not be misled, deceived or confused about the actual origin of the shirt by the presence of the U.S. address since the shirt is conspicuously marked "Made in India" by means of a sewn in label affixed to the inside center of the neck midway between the shoulder seams of the shirt.

Accordingly, we find that the proposed marking on the sample shirt, as described above, satisfies the requirements of 19 U.S.C. 1304 and 19 CFR Part 134 and is an acceptable country of origin marking for the imported short sleeve shirts.

HOLDING:

The proposed method of marking on the sample shirt in the manner described above, satisfies the 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

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