HQ 734591 - Country of origin marking of imported bingo pads; conspicuous location; HQ 733940; 19 CFR 134.41 - United States International Trade Commision Rulings

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HQ 734591

September 17, 1992

Mar-2-05 CO:R:C:V 734591 AT

CATEGORY: MARKING

Leslie Alan Glick, Esq.
Porter, Wright, Morris & Arthur
1233 20th Street, N.W.
Washington, D.C. 20036-2395

RE: Country of origin marking of imported bingo pads; conspicuous location; HQ 733940; 19 CFR 134.41

Dear Mr. Glick:

This is in response to your letter dated April 6, 1992, on behalf of Arrow International, Inc. (Arrow), requesting a ruling on the country of origin marking of bingo pads imported from Mexico. A sample bingo pad was submitted with your letter. Additional information and affidavits from Arrow were submitted on August 17, 20 and 24, 1992.

FACTS:

You state that Arrow intends to import bingo pads from Mexico which will be entered through the ports of El Paso or Laredo, Texas. On the front of the sample bingo pad the word "BINGO" is printed on the top. Directly below, random numbers are printed in black ink in five horizontal and vertical columns. A white colored carrier sheet is attached to the back of the bingo pad. The words "Made in Mexico" are printed on the middle and bottom of the carrier sheet in contrasting black ink in approximately 4.5 point lettering (a point is a unit of measurement approximately equal to 0.01384 inches or nearly 1/72 inches and all type sizes are a multiple of this unit.) The phrase "Good luck to those players who generously support the efforts of this charitable organization through Bingo. Support your local charity" is also printed directly above the words "Made in Mexico". You also state that Arrow prints these bingo pads in multiple-format of as many as 36 faces which are cut and assembled into smaller combinations with each pad comprising several bingo faces and are assembled in groups of one, two, three, four, five, six, eight, nine, ten, twelve, fifteen, eighteen, twenty four, thirty, and thirty six. You claim that the bingo pads are always sold to the bingo player with the attached carrier sheet and that the individual sheets are never sold separately. In support of your position, you have submitted an affidavit dated August 14, 1992, from John E. Gallagher (President of Arrow). Mr. Gallagher states that the bingo pads are only sold as a unit by the game operators, and are not sold page by page or as partial units to the bingo players. You contend that the bingo pads are always sold upside down with the back of the carrier sheet being exposed to the bingo player at the time he/she purchases the pad. You state that the game operators sell the bingo pads in this manner (upside down) in order to assure that the numbers are anonymous to other bingo players. In support of your position you have provided an affidavit dated August 19, 1992, from Robert B. Fulton (Assistant Vice President of Marketing for Arrow). Mr. Fulton states that most commonly, when the pads are sold in a gaming hall, they are sold face down, with the carrier sheet visible to the player as it is presented. This is done because many players prefer that other players present at the session not see the bingo faces which the player will be paying. Mr. Fulton also states that when a player leaves his seat at the intermission during a bingo game session, or to purchase refreshments, the player will often turn over the pad so that other players cannot see the faces being used by the player.

Based on these claims, you assert that the marking "Made in Mexico" printed on the back of the carrier sheet of each bingo pad is an acceptable country of origin marking for these imported bingo pads.

ISSUE:

Whether the country of origin marking on the imported bingo pads as described above satisfies 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 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. 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, 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. Section 134.1(d), Customs Regulations (19 CFR 134.1(d)) defines ultimate purchaser as "generally the last person in the U.S. who will receive the article in the form in which it was imported." In this case the ultimate purchaser is the person who purchases the bingo pad from the game operator and each bingo pad must be conspicuously marked to indicate the country of origin to the ultimate purchaser.

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 in the U.S. is able to find the marking easily and read it without strain.

In HQ 733940 (October 24, 1991), Customs indicated that there are certain factors that need to be considered in determining if the country of origin marking on an article is conspicuous within the meaning of 19 CFR 134.41 and 19 U.S.C. 1304. Among the factors that should be considered is the size of the marking, the location of the marking, whether the marking stands out, and the legibility of the marking. The size of the marking should be large enough so that the ultimate purchaser can easily see the marking without strain. The location of the marking should be in a place on the article where the ultimate purchaser could expect to find the marking or where he/she could easily notice it from a casual inspection. Whether the marking stands out is dependent on where it appears in relationship to other print on the article and whether it is in contrasting letters to the background. The legibility of the marking concerns the clarity of the letters and whether the ultimate purchaser could read the letters of the marking without strain. No single factor should be considered conclusive in determining whether a marking meets the conspicuous requirement of 19 CFR 134.41 and 19 U.S.C. 1304. Instead, it is the combination of these factors which determines whether the marking is acceptable. In some cases, a marking may be unacceptable even when it is in a large size because the letters are too hard to read or it is in a location where it would not be easily noticed. In other cases, even if the marking is small, the use of contrasting colors, which make the letters particularly stand out, could compensate to make the marking acceptable. In applying these factors to the sample bingo pad, we first find that the marking "Made in Mexico" which appears on the back of the carrier sheet is easily noticeable from a casual inspection of the pad. Although the marking is printed on the back of the bingo pad (generally not a place an ultimate purchaser could expect to find the marking), nevertheless, the marking is easily noticeable by an ultimate purchaser prior to purchase since the pads are sold face down, as stated in Mr. Bulton's affidavit of August 20, 1992. Marking the bingo pads with the country of origin on the back of the carrier sheet is in this case a conspicuous place to mark the pads. Even though the size of the lettering is small (4.5 point) it can be easily seen by a casual inspection since it is in a contrasting black color. Furthermore, the marking is clear and can be easily read without strain. Considering the above factors together, we find that the country of origin marking on the sample bingo pad satisfies the requirements of 19 CFR 134.41 and 19 U.S.C. 1304.

HOLDING:

The proposed country of origin marking on the submitted sample bingo pad, as described above, satisfies the marking requirements of 19 U.S.C. 1304 and section 19 CFR 134.41, provided that the district director is satisfied that the bingo pads will be sold in the manner described.

Sincerely,

John Durant, Director

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