HQ 560806 - Request for a ruling regarding the country of origin marking of certain fishing floats, stops and beads; 19 CFR 134.47; evidence of trademark recordation; contrasting ink; conspicuous location; separation of marking from other product information - United States International Trade Commision Rulings

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HQ 560806

March 19, 1998

MAR-05 RR:TC:SM 560806 KKV

CATEGORY: MARKING

Mr. Thomas F. Trost
Phoenix Freight Services
4659 World Parkway Circle
St. Louis, MO 63134

RE: Request for a ruling regarding the country of origin marking of certain fishing floats, stops and beads; 19 CFR 134.47; evidence of trademark recordation; contrasting ink; conspicuous location; separation of marking from other product information

Dear Mr. Trost:

This is in response to your letter dated December 29, 1997, and subsequent submission March 12, 1998, on behalf of Bass Pro Shops, which requests a binding ruling regarding the proposed country of origin marking for certain fishing floats, stops and beads. A sample of the proposed label has been submitted for our consideration.

FACTS:

Bass Pro Shops proposes to sell fishing floats, stops and beads in sealed retail bags with header cards. A sample of the proposed label has been submitted. The front side of the label is variegated green, on which the trademark, "American Rod & Gun " together with its accompanying logo," is printed in contrasting red capital letters. Adjacent to this information, printed in large white letters is the identifier "Slip Eze" and the product identity, "Foam Float Assortment" Immediately below, in smaller white letters is printed "6 Floats and 18 Stops and Beads." Slightly below this, printed in contrasting white capital letters in a type size smaller than the surrounding type, located in the lower right-hand corner of the label separated from other product information is the country of origin marking, "Made in China." The reverse side of the label is white, and is printed with additional product information. No U.S. address or other geographical reference appears on the reverse side of the label.

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 its 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. One of the exceptions to the general marking requirement is codified in 19 U.S.C. 1304(a)(3)(D) (as implemented by 19 CFR 134.32(d)), which provides that an article may be excepted from marking if the marking of its container will reasonably indicate its origin to the ultimate purchaser. 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 United States is able to find the marking easily and read it without strain. The degree of permanence of the marking should be at least sufficient to insure that in any reasonably foreseeable circumstance, the marking shall remain on the article until it reaches the ultimate purchaser unless it is deliberately removed. The marking must survive normal distribution and store handling.

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. In such circumstance, no comparable size requirement exists.

The purpose of this provision, and related provision 19 CFR 134.46, is 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 U.S. reference and in lettering of at least comparable size. By contrast, 19 CFR 134.47 is less stringent, providing that when as part of a trade name, trademark or souvenir mark, the name of a location in the U.S. or "United States" or "America" appears on the imported article, the name of the country of origin must appear in close proximity 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.

As applied to the proposed marking submitted for consideration, the less restrictive requirements of 19 CFR 134.47 are triggered by the use of the phrase "American Rod & Gun" with its accompanying logo, which appears on the front side of the label. Although 19 CFR 134.47 applies when a locality reference appears as part of a trademark, Customs has accepted a filed application with the U.S. Patent and Trademark Office as sufficient evidence of a trademark for purposes of 19 CFR 134.47 because the regulation does not specify what evidence is needed to establish a trademark.

You have presented evidence that an application for the trademark "American Rod & Gun" was filed with the U.S. Patent and Trademark Office, which issued a Notice of Recordation and Assignment dated February 7, 1997. Therefore, Customs finds that the more lenient requirements of 19 CFR 134.47 apply. Consequently, the country of origin need appear in close proximity or "in some other conspicuous location" preceded by words such as "Made in" or "Product of."

On the sample label submitted for our consideration, the country of origin marking, "Made in China" is printed in contrasting white capital letters, located in the lower right-hand corner of the label. Although the font used to print the marking is smaller than the surounding type, the marking is separated from other product information in such a way that it may be easily located and read by a potential purchaser. Accordingly, we find that the sample satisfies the requirement of conspicuousness of 19 CFR 134.47.

HOLDING:

Where the phrase "American Rod & Gun" appears on the front side of a variable green header card, the country of origin marking, "Made in China" printed in contrasting white capital letters in a type size smaller than the surrounding type but located in the lower right-hand corner of the label separated from other product information satisfies the requirements of 19 CFR 134.47 and 19 U.S.C. 1304.

The holding set forth above applies only to the specific factual situation and merchandise identified in the ruling request. This position is clearly set forth in section 19 CFR 177.9(b)(1), which states that a ruling letter is issued on the assumption that all information furnished in connection with the ruling request and incorporated therein, either directly, by reference, or by implication, is accurate and complete in every material respect. Should it be subsequently determined that the information furnished is not complete and does not comply with 19 CFR 177.9(b)(1), the ruling will be subject to modification or revocation. In the event there is a change in the facts previously furnished, this may affect the determination contained herein.

A copy of this ruling letter should be attached to the entry documents filed at the time the goods are 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
Commercial Rulings Division

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