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HQ 559938




February 27, 1997

MAR-05 RR:TC:SM 559938 KKV

CATEGORY: MARKING

Ms. Rose Althoff
Midwest of Cannon Falls
32057 64th Avenue
P.O. Box 20
Cannon Falls, MN 55009-0020

RE: Country of origin marking of figurines; misleading; 19 CFR 134.46, 19 CFR 134.47

Dear Ms. Althoff:

This is in response to your letter dated June 7, 1996, which was forwarded to our office on July 2, 1996, which requests reconsideration of New York Ruling Letter (NYRL) A82648, dated May 9, 1996, concerning the country of origin marking requirements for imported figurines which have been designed in the United States. We note, however, that your current inquiry focuses upon facts and proposed marking which differ somewhat from your initial request to our New York office. Therefore, your request will be treated as a separate request for a ruling under the purview of 19 CFR Part 177 and this ruling shall not be construed a reconsideration NYRL A82648. Two samples have been submitted for our examination.

FACTS:

We are informed that Midwest of Cannon Falls imports two decorative cartoon character figurine lines from Hong Kong. The figurines, Daffy Duck Nutcracker (item 17998-7) and Marvin the Martian Nutcracker (item 17996-3 are made in China of polyresin and wood. The polyresin material consists of calcium carbonate (derived from limestone) agglomerated with plastic resin. The figurines are classified under subheading 6810.99.0000, HTSUS, which provides for articles of...artificial stone, whether or not reinforced: other articles: other and are dutiable at a rate of 2.9% ad valorem.

Two samples of the Marvin the Martian figurine, have been submitted for our consideration. Both sample figurines are permanently affixed to a base of unknown composition. The first sample is marked at the back of the base: "TM & 1996 WARNER BROS. BY MIDWEST OF CANNON FALLS." The second sample is marked in a similar fashion, but has a sticker with the country of origin which obscures the word "by" so that the back of the base reads "TM & 1996 WARNER BROS. MADE IN CHINA MIDWEST OF CANNON FALLS." The second sample is also marked with a hang tag which, in addition to copyright and trademark information, reads "Reproduced by Midwest of Cannon Falls" in combination italicized/boldface type and the phrase "MADE IN CHINA" in capital letters in a type larger than the surrounding information. You propose to mark the back of the base "TM & 1996 WARNER BROS. MIDWEST OF CANNON FALLS" and place the country of origin information on the bottom of the base of the figurine.

ISSUE:

Whether the proposed country of origin marking 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 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. By enacting 19 U.S.C. 1304, Congress intended to ensure that the ultimate purchaser would be able to know by inspecting the marking on the imported goods the country of which the goods are 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, 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 134.41, Customs Regulations (19 CFR 134.41), the country of origin marking is considered to be conspicuous if the ultimate purchaser in the United States is able to find the marking easily and read it without strain. Of concern here are the requirements of two related provisions of the marking regulations, section 134.46, Customs regulations (19 CFR 134.46) and section 134.47, Customs regulations (19 CFR 134.47).

Specifically, 19 CFR 134.46 requires that, in instances where 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. 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 (See Headquarters Ruling Letter (HRL) 708994, dated April 24, 1978). The more restrictive requirements of 19 CFR 134.46 are designed to alleviate the possibility of any misleading of an ultimate purchaser with regard to the country of origin of an imported article, if such article or its container includes language which may suggest a U.S. origin (or other foreign locality not the correct country of origin). However, Customs has held that, under certain conditions, geographic names appearing in connection with imported articles do not necessarily trigger the requirements of 19 CFR 134.46 if the context in which the names are used is such that confusion by the ultimate purchaser regarding country of origin is unlikely (See Customs Service Decision (C.S.D.) 90-31, dated December 20, 1989).

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. appears, the article shall be legibly, conspicuously, and permanently marked to indicate the name of the country of origin of the article preceded by the words "Made in," "Product of," or other similar words, in close proximity or in some other conspicuous location (emphasis added). In such circumstance, no comparable size requirement exists.

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 non-origin reference and in lettering of at least comparable size. By contrast, 19 CFR 134.47 is less stringent, providing that the name of the country of origin must appear in close proximity to the non-origin reference 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. With regard to the matter currently under consideration, we note that Cannon Falls is the name of a city in Minnesota. In the absence of evidence indicating that Midwest of Cannon Falls constitutes a trade name, trademark or souvenir mark, the less stringent requirements of 19 CFR 134.47 are inapplicable, and the proposed marking must adhere to the stricter requirements of 19 CFR 134.46.

In C.S.D. 90-31, dated December 20, 1989, Customs held that, under certain conditions, geographic names appearing in connection with imported articles do not necessarily trigger the requirements of 19 CFR 134.46 if the context in which the names are used is such that confusion by the ultimate purchaser regarding country of origin is unlikely. In that decision, Customs cited to several rulings including HQ 732329 (July 12, 1989), (address on a warranty card did not pose a risk of confusion to ultimate purchasers) and HQ 732816 (November 24, 1989), (address printed on display ticket was provided to assist customer in the event of questions concerning guarantees) where it was decided that the context in which the names and addresses were used was such that confusion regarding country of origin was not conceivable.

Here, however, the non-origin geographical reference on the subject figurines is not accompanied by warranty information or as a point of reference for customer service concerns, making the possibility of confusion regarding the origin of the product more likely, triggering the applicability of the special marking requirements of 19 CFR 134.46. The likelihood of confusion is further compounded where the phrase "Midwest of Cannon Falls" is preceded by the word "By," unaccompanied by any other verb, such as "designed," thus creating the implication that the article was manufactured by Midwest of Cannon Falls. Therefore, if, as you propose, the phrase "Midwest of Cannon Falls" appears on the back of the base of the figurine (or on its container), it must be accompanied by the country of origin, China, preceded by "Made in," "Product of" or words of similar meaning printed in letters of at least comparable size. With regard to the location of such marking, in Headquarters Ruling Letter (HRL) 558734, dated November 4, 1994, Customs held that the marking "Hand Painted in USA, Made in Uruguay" located on the bottom of imported plaster figurines satisfies the requirements of 19 CFR 134.46.

Therefore, the subject figurines may be marked on the bottom of the figurine and/or at the back of the base with the phrase "TM & WARNER BROS. MADE IN CHINA BY MIDWEST OF CANNON FALLS" In the alternative, the markings, "DESIGNED BY MIDWEST OF CANNON FALLS, MADE IN CHINA" or "MADE IN CHINA FOR MIDWEST OF CANNON FALLS" would also meet the requirements of 19 U.S.C. 1304 and 19 CFR 134.46.

HOLDING:

Because the reference to "Midwest of Cannon Falls" is likely to create confusion regarding the origin of figurines made in China, the special marking requirements of 19 CFR 134.46 are triggered. Therefore, wherever the reference to "Midwest of Cannon Falls" appears, it must be accompanied by the country of origin, China, preceded by "Made in," "Product of," or words of similar meaning.

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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