HQ 734794 - Country of Origin Marking for individual boxes containing perfume and other Personal Care Products with a Trademark of "MONTEIL Paris"; 19 CFR 134.46; 19 CFR 134.47; Application for Trademark. - United States International Trade Commision Rulings

United States International Trade Commision Rulings And Harmonized Tariff Schedule

faqs.org Rulings By Number Rulings By Category Tariff Numbers

faqs.org > Rulings and Tariffs Home > Rulings By Number > 1997 HQ Rulings > HQ 734569 - HQ 950310 > HQ 734794

Previous Ruling Next Ruling
HQ 734794

January 15, 1993

MAR-2-05 CO:R:C:V 734745 ER

CATEGORY: MARKING

Joni Laura, Esq.
Graham & James
2000 M Street, N.W.
Suite 700
Washington, D.C. 20036-3113

RE: Country of Origin Marking for individual boxes containing perfume and other Personal Care Products with a Trademark of "MONTEIL Paris"; 19 CFR 134.46; 19 CFR 134.47; Application for Trademark.

Dear Ms. Laura:

This is in response to your letter dated August 27, 1992, on behalf of your clients, Lancaster Group A.G. and Lancaster Group USA, Inc, requesting a country of origin marking ruling regarding the correct marking procedure for individual boxes containing perfume and other personal care products.

FACTS:

Lancaster USA plans to import into the U.S. a new product line, "MONTEIL Paris". The products will be imported in individual boxes, and consist of various sizes of perfume, shower gel, body balm, body cream and other personal care products. Submitted with the ruling request is a computer mock-up of one of the boxes. The larger two side panels of the box measure approximately 4.25 inches long x 4.25 inches wide. The two smaller side panels measure approximately 4.25 inches long and .5 inch wide. The boxes will be printed as follows: at the top of the front panel of the box will appear the word "MONTEIL", with the word "Paris" directly underneath. In the center of the front panel, the type of product is identified, e.g. Rich Powder Eyeshadow Grand Duo. The volume of the product, e.g., "net wt. 12 oz/ 3.4 g" is marked at the bottom of the front panel. The back panel displays a description of the product uses and a list of the product ingredients. At the bottom of the back panel appears the legend "Lancaster Group U.S.A. Dist., New York, New York 10151-7728", underneath which the country of origin marking, "Made in Germany", appears in letters of equal size.

The product name on the front panel as well as the language describing uses for the product on the back panel will appear in both English and French. Both languages are used because the product line will be marketed in North America in both Canada and the U.S. Use of both the English and French languages is intended to conform to Canadian practice and law.

An application for registration in the U.S. of the trademark "MONTEIL Paris" was filed on April 28, 1992. A copy of the trademark application and a computer mock-up of the above- described box were submitted to this office.

ISSUE:

What are the country of origin marking requirements for a personal care product line imported from Germany in boxes which display the words "USA", "New York" and "MONTEIL Paris", the latter of which is the subject of a previously filed application for trademark?

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 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. U.S. v. Friedlaender & Co., 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. As provided in 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 U.S. is able to find the marking easily and read it without strain. Section 134.1(d), Customs Regulations, (19 CFR 134.1(d)), defines the 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 consumer who purchases the product at retail.

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, appear 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. HQ 708994 (April 24, 1978). 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. In this case, "USA" and "New York" appear below the list of ingredients. The box is marked with country of origin, "Made in Germany", below the two U.S. references, in lettering of comparable size, and on the same panel. Thus, the requirements of 19 CFR 134.46 are satisfied vis-a-vis the "USA" and "New York" references.

Section 134.47, Customs Regulations (19 CFR 134.47), requires a less stringent form of marking than is mandated by 19 CFR 134.46. Under 19 CFR 134.47, when the name of a place other than the country of origin appears as part of a trademark, trade name or as part of a souvenir marking, the name of the actual country of origin must appear, preceded by the words "Made in" or Product of" (or words or similar meaning), in close proximity to the place "or in some other conspicuous location". In other words, a general standard of conspicuousness applies. See, HQ 734455 (July 1, 1992) and rulings cited therein.

The language of 19 CFR 134.47 refers to a trademark or trade name with a U.S. location. In the instant case, the trademark includes the name of the French city, "Paris". However, Customs has held that "the rationale for granting a special exemption for trademarks and trade names containing the name of a domestic locality applies at least as strongly to trademarks bearing the name of a foreign locality. Accordingly, it is our opinion that the intent of 134.47 was to include "foreign trademark designations as well as domestic locales". HQ 731524 (December 18, 1989) (quoting HQ 710682 (June 26, 1979)).

In this case, the application for trademark was filed on April 28, 1992. The application has not been granted. Customs has previously allowed an application for trademark to qualify for the 134.47 exception pending Customs' final interpretation of the regulations. See, HQ 734066 (July 15, 1991) and HQ 734073 (July 10, 1991).

In HQ 734455 supra, Customs determined to apply the more lenient requirements of 19 CFR 134.47 where the word "Berlin" constituted part of a trademark which had been applied for with the U.S. Patent and Trademark Office. However, Customs specifically qualified the allowance noting that:

[a]lthough 19 CFR 134.47 applies when a locality reference appears as part of a trademark, the regulation does not specify what evidence is needed to establish a trademark. In view of the fact that the regulation does not specify that trademark registration is required, we have not previously required such evidence. However, absent evidence of registration, other evidence of trademark is required. The question presented in this case is whether the mere filing of an application for registration is sufficient evidence to establish a trademark for purposes of 19 CFR 134.47. We have concerns about whether this is enough, especially when the application is based on an intent to use the purported trademark. We are considering soliciting public comments on the broad issue of what evidence of trademark is necessary to invoke the requirements of 19 CFR 134.47. Nonetheless, because the above two rulings [HQ 734066 and HQ 734073] applied the requirements of 19 CFR 134.47 when the only evidence of trademark was the pending application, 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.

Accordingly, in the instant case we find that the country of origin marking "Made in Germany" appearing on the rear panel of the computer mock-up of the box is in a sufficiently conspicuous location to satisfy the requirements of 19 CFR 134.47 and 19 CFR 134.46. Because of the wide range of personal care products sought to be imported, this ruling is limited to a box with substantially the dimensions and marking described above. The acceptability of the country of origin marking on the containers for the other type of personal care products to be imported (in boxes of different dimensions) is within the discretion of Customs at the port of entry and is to be determined on the basis of a comparison to the acceptable form of country of origin marking described in this ruling.

HOLDING:

The country of origin marking of packaged personal care products, as described above in this ruling, satisfies the requirements of 19 U.S.C. 1304.

Sincerely,

John Durant, Director

Previous Ruling Next Ruling