HQ 559525 - Country of Origin Marking on a Porcelain Ballerina Figurine and a Sculptstone Fox Figurine; Containers; Cardboard box; Marking Exception; 19 CFR 134.46; 19 CFR 134.32(d); 19 CFR 134.36(b); Modification - United States International Trade Commision Rulings

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HQ 559525

April 21, 1997

MAR 2-05 RR:TC:SM 559525 KBR

CATEGORY: MARKING

Arlen T. Epstein
Serko & Simon
One World Trade Center, Suite 3371
New York, NY 10048

RE: Country of Origin Marking on a Porcelain Ballerina Figurine and a Sculptstone Fox Figurine; Containers; Cardboard box; Marking Exception; 19 CFR 134.46; 19 CFR 134.32(d); 19 CFR 134.36(b); Modification

Dear Mr. Epstein:

This is in reference to your letters of October 23, 1995, and October 26, 1995, requesting reconsideration of New York Ruling Letter (NYRL) 812669 dated August 7, 1995, on behalf of Russ Berrie and Company, Inc., concerning the country of origin markings on a porcelain ballerina figurine and a sculptstone fox figurine and their containers. A sample of each was submitted with your request.

FACTS:

Russ Berrie and Company, Inc., is the importer of porcelain ballerina figurines and "sculptstone" fox figurines. The ballerina figurine is approximately 7 1/4 inches high. The ballerina figurine has an adhesive label on the bottom which has the importer's name, the brand name, the item number and the country of origin marking "Made in China". The ballerina figurine is packaged in an unsealed cardboard box. The top flap of the box states the name of the figurine:

At The Ballet
Porcelain Collectable Figurine

The bottom flap of the box again states the name of the figurine as above, plus gives the item number, the brand name, the importer's name and address in the U.S. (Oakland, New Jersey) and the country of origin, "Made in China". The printing of the importer's address and the country of origin are of equal size.

The fox figurine is approximately 5 inches wide and 4 inches high and depicts a fox and cub sitting on a base. The bottom of the base gives a description of the fox which states:

RED FOX (Vulpes vulpes)

The red fox is a member of the dog family. Handsome, yet vicious at times, this generally nocturnal animal is found in Europe, Asia and North America. The adult fox is approximately 14 inches high at the shoulder. They live on the ground, but are also known to climb trees. Their main food source is rodent, but they also feed on birds, frogs and select plant life.

RUSS Russ Berrie and Company, Inc.

Oakland, New Jersey
ITEM NO. 14653 Made in Indonesia

REG. NUMBER LA 2037

The fox figurine is packaged in an unsealed cardboard box. The bottom of the box has an adhesive label which states:

THE NORTH AMERICAN
WILDLIFE COLLECTION
Collectible Figurine
RED FOX AND CUB
RUSS
Russ Berrie and Company, Inc.
Oakland, New Jersey
Item No. 14653
Item: Made in Indonesia
Box: Printed in Taiwan, R.O.C.

You state that both the ballerina figurine and the fox figurine will only be sold in these retail boxes.

In NYRL 812669, Customs found that the country of origin marking placed on the bottom of the boxes of both the figurines was not a conspicuous location as required by Customs. Further, the New York ruling found that the statement on the fox figurine's box "NORTH AMERICAN WILDLIFE COLLECTION" triggered the requirements of Customs Regulations section 134.46 (19 CFR the same size print as the statement containing the location other than the country of origin.

ISSUES:

1. Whether the country of origin marking on the bottom of the boxes of the porcelain ballerina figurine and the sculptstone fox figurine is in a conspicuous location.

2. Whether the statement "THE NORTH AMERICAN WILDLIFE COLLECTION" triggers the requirements of 19 CFR ?134.46.

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 (or its container) imported into the U.S. 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 U.S. the English name of the country of origin of the article. Part 134, Customs Regulations (19 CFR Part 134) implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304.

Pursuant to 19 U.S.C. 1304(a)(3)(D) and section 134.32(d), Customs Regulations {19 CFR 134.32(d)}, an exception from individual marking is applicable where the marking of the container of an imported article will reasonably indicate the origin of the article. This exception is normally applied in cases where the imported article is imported in a properly marked container and Customs officials at the port of entry are satisfied that the ultimate purchaser in the U.S. will receive it in its original marked container. However, if the ultimate purchaser is able and likely to view the article itself, even if the article is placed inside a container, there is no requirement that the container must also be marked with the country of origin.

In NYRL 812669, it was determined that the bottom of the box was not a conspicuous location for the country of origin. While Customs has ruled that the bottom of a box is generally not a conspicuous location (see e.g. HQ 734693 (October 30, 1992); HQ 732 917 (May 11, 1990); HQ 732870 (March 19, 1990)), we do not find that under the circumstances in this case such marking violates section 1304. The bottom of a figurine such as the ballerina or fox is a conspicuous location for country of origin marking, so as not to detract from the beauty of the figurine. See e.g. HQ 558734 (November 4, 1994); HQ 733728 (November 21, 1990). Since the article itself is marked in a conspicuous location, and since the ultimate purchaser likely will remove the article from the unsealed box to see precisely what the article looks like and that it is not damaged, we find that the article is appropriately marked with its country of origin.

In NYRL 812669, it also was determined that the reference "THE NORTH AMERICAN WILDLIFE COLLECTION" on the bottom of the box containing the fox figurine invoked 19 CFR ?134.46, which requires that, in cases where the name of a location other than the country in which the article was produced appears on the 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. Therefore, NYRL 812669 held that the country of origin marking "Made in Indonesia" must appear in equal size print to that of "THE NORTH AMERICAN WILDLIFE COLLECTION".

Customs has consistently held that in those cases in which a reference to a place other than the country of origin is made on an imported article, but such reference would not confuse the ultimate purchaser, the requirements of 19 CFR ?134.46 are not triggered. Furthermore, Customs has determined that the special requirements of 19 CFR ?134.36(b) should not be applied automatically to all imported articles or their containers which bear a non-origin geographical reference. Section 134.36(b), Customs Regulations (19 CFR ?134.36(b)), states that an exception from marking shall not apply to any article or retail container bearing any words, letters, names, or symbols described in section 134.46 which imply that an article was made in a country other than the actual country of origin.

In HQ 732412 (August 29, 1989), Customs found that the placement of the word "Kansas" on different parts of imported jeans did not trigger the requirements of 19 CFR ?134.46 because such marking was used as a symbol or decoration and would not reasonably be construed as indicating the origin of the article on which it appeared. Likewise, in HQ 733695 (January 15, 1991), women's trousers with metal rivets die-stamped with the words "Bonjour Paris", and containing a fabric label sewn into the waistband indicating the country of origin as Hong Kong, were not subject to the requirements of 19 CFR ?134.46 since the rivets were decoration on the garment and an integral part of the design. However, in HQ 732486 (September 5, 1989), a label, crest, and hangtag containing the words "Riviera Line" were attached to imported garments. The hangtag contained a picture of a cruise ship in the center with two circles around the ship. Below the ship in large bold lettering was the phrase "RIVIERA LINE." The crest had a large script letter "R" in the center surrounded by a crest with the word "RIVIERA" below the letter "R." It was determined that while the crest was part of the design of the garment, the hangtag with the phrase "Riviera Line" triggered the special marking requirements of 19 CFR ?134.46; therefore, the hangtag had to contain the country of origin printed in a conspicuous manner and placed in close proximity to the phrase "Riviera Line." The rationale was that a locality other than the country of origin is more likely to cause confusion when it appears on a hangtag attached to a garment because a hangtag is designed to attract the attention of the purchaser and generally contains information about the article. As such, a reference on the hangtag to a locality other than the country of origin of the article to which it is attached was potentially misleading with regard to the garment's country of origin.

In HQ 559267 (October 20, 1995), Customs found that a canister containing the phrase "By Appointment to His Majesty The King of Sweden," did not trigger the requirements of 19 CFR and coffee canisters should understand that "By Appointment to His Majesty The King of Sweden" referred to the Gevalia coffee and not to the canister. Customs stated that the ultimate purchaser would not confuse the reference to the King of Sweden as any information concerning the origin of the canister. Specifically Customs stated that "[s]ince the purpose of 19 CFR ?134.46 is to prevent the ultimate purchaser from being confused as to the country of origin of a product, we conclude that the reference to the King of Sweden does not invoke the requirements 19 CFR ?134.46."

We find that this case involves a situation similar to that in HQ 559267 (October 20, 1995). We do not believe anyone will be confused as to the country of origin of the fox figurine. In our opinion, the ultimate purchaser will know that the phrase "NORTH AMERICAN WILDLIFE COLLECTION" refers to the fox's habitat, rather than where the figurine is created.

Although not addressed in NY 812669, we note that the importer's address (Oakland, CA) appearing on both boxes and on the bottom of the fox figurine triggers the requirements of 19 CFR close proximity to these statements, in equal size print, preceded by the words "Made in", we find that the requirements of 19 CFR

HOLDING:

Based upon the information provided, it is our opinion that the bottom of the figurine itself is a conspicuous location for the country of origin marking for both the ballerina figurine and the fox figurine and that under the circumstances of this case, marking on the bottom of the retail boxes does not violate section 1304. Further, we find that the requirements of 19 CFR ?134.46 are not triggered by the statement , "NORTH AMERICAN WILDLIFE COLLECTION", and the requirements of 19 CFR ?134.46 are satisfied as to the reference to Oakland, CA on both boxes and on the bottom of the fox figurine.

Therefore, NYRL 812669 (August 7, 1995) is modified accordingly.

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
Division

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