HQ 561023 - Country of origin marking of multi-color ball point pens; conspicuous marking; legible; blister packs; repacking certification; 19 CFR 134.26; 19 CFR 134.41; 19 CFR 134.44; and 19 CFR 134.46 - United States International Trade Commision Rulings

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HQ 561023

June 15, 1998

MAR-02 RR:CR:SM 561023 RSD

CATEGORY: MARKING

Francis J. Sailer, Esq.
Dickstein, Shapiro, Morin & Oshinsky
2101 L Street, NW
Washington, D.C. 20037-1526

RE: Country of origin marking of multi-color ball point pens; conspicuous marking; legible; blister packs; repacking certification; 19 CFR 134.26; 19 CFR 134.41; 19 CFR 134.44; and 19 CFR 134.46

Dear Mr. Sailer:

This is in response to your letter dated May 27, 1998, requesting a ruling on behalf of Pentech International, Inc. ("Pentech") concerning the country of origin marking of multi-color pens to be imported from China. Your request for expedited review has been granted. Two sample pens, one pen unpackaged and the other pen packaged in a blister pack accompanied your submission.

FACTS:

Pentech intends to import 10-color ball point pens from China through the port of New York. The pens will be sold under the trade name "FIRE WORKS!". It is anticipated that the pens will be imported in multiple bulk shipments. At the time of importation, a sticker showing the country of origin of the pens will be attached to each pen. In addition, the outermost bulk containers of the pens will be marked with the country of origin of the pens.

After importation, the pens will be repacked into individual blister packs. Pentech indicates that it intends to file a certification with Customs stating that it will repack the merchandise in retail containers while the merchandise is still in its possession and that the new containers will be marked with the country of origin of the pens in a conspicuous place as legibly, indelibly, and permanently as the nature of article or the containers will permit.

Sample A is an unpackaged pen. It is marked with its country of origin on a sticker wrapped around the pen. The sticker also shows the trade names "PENTECH" and "FIRE WORKS". While the trade names are printed horizontally, the country of origin marking, "CHINA", is printed vertically. Sample pen B is packed inside a blister pack. The country of origin marking on the sticker placed on the individual pen is obscured and cannot be seen through the plastic. The country origin marking for the pen, "Made In China" is on the bottom of the back of the placard of the sample blister pack. This country of origin marking is in black lettering against a gray and white background and is directly underneath Pentech's U.S. address, "Edison, NJ 08817". The marking is in the same size lettering as the "Edison NJ" reference.

ISSUE:

Whether the country of origin marking on the sample pen and sample blister pack as described above satisfies the country of origin marking law.

LAW AND ANALYSIS:

The marking statute, 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. 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, 302 (1940).

Part 134 of the Customs Regulations implements the country of origin marking requirements and exceptions of 19 U.S.C. ?1304. Section 134.41(b), mandates that the ultimate purchaser in the United States must be able to find the marking easily and read it without strain. That section further provides that the degree of permanence 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.

In Headquarters Ruling Letter (HRL) 733940 dated October 24, 1991, Customs considered certain factors in determining if the country of origin marking on an article, such as a pen, was conspicuous within the meaning of 19 CFR 134.41 and 19 U.S.C. the location of the marking, whether the marking stood out, and the legibility of the marking. The size of the marking had to be large enough so that the ultimate purchaser could easily see the marking without strain. The location of the marking had to be in a place on the pen where the ultimate purchaser could expect to find the marking or where it could be easily noticed from a casual inspection. Whether the marking stood out was dependent on where it appeared in relation to other print on the article and whether it was in contrasting letters to the background. The legibility of the marking concerned the clarity of the letters and whether the ultimate purchaser could read the letters of the marking without
strain. No single factor was stated to be conclusive by itself in determining whether a marking was conspicuous. Instead, it was the combination of these factors which determined whether the marking was acceptable.

In HRL 734162 dated November 18, 1991, Customs found that markings on several pens, in type as large as 4 « points and in locations such as on the top portion of the clip or underneath the clip, were not conspicuously or legibly marked and, therefore, did not satisfy the requirements of 19 U.S.C. ?1304. However, in HRL 733839 dated January 31, 1991, Customs found that a small, molded, and non-contrasting "Made in China" marking on a sound box measuring 2.25 x 1.375 x 0.375 inches could still be read easily and without strain, considering the nature and small size of the article.

Upon review of sample pen A, we find that the country of origin marking on the pen is sufficiently conspicuous and legible to satisfy the requirements of 19 CFR 134.41(b). The country of origin marking is printed on a sticker near the trade name of the pen and it can easily be noticed from a casual inspection of the article. The marking is in contrasting color so it stands out and the letters are large enough so that they can be read without strain. Accordingly, we find that the marking on the pen is acceptable.

However, you indicate that the pens will be repacked after importation and sold in blister packs. In most cases, the marking on the pens will be obscured by the blister packs. This is shown by sample Pen B where the country of origin marking on the pen itself is not visible. Therefore, to ensure that the ultimate purchaser is informed as to the country of origin of the pens, Pentech submits that it will follow the procedures of 19 CFR 134.26. This section provides, in pertinent part, that:

If an imported article subject to these requirements is intended to be repacked in retail containers ... after its release from Customs custody, or if the port director having custody of the article, has reason to believe such article will be repacked after its release, the importer shall certify to the port director that: (1) If the importer does the repacking, he shall not obscure or conceal the country of origin marking appearing on the article, or else the new container shall be marked to indicate the country of origin of the article in accordance with the requirements of this part; or (2) if the article is intended to be sold or transferred to a subsequent purchaser or repacker, the importer shall notify such purchaser or transferee, in writing, at the time of sale or transfer, that any repacking of the article must conform to these requirements. The importer, or his authorized agent, shall sign the following statement....

For sample pen B, the country of origin is printed near the bottom of the back of the placard of the blister pack. We also find that the county of origin marking on the blister pack for sample pen B is sufficiently legible and conspicuous to satisfy the requirements of 19 CFR 134.41(b) and is otherwise acceptable.

Because a non-origin geographical reference, "Edison NJ", also appears on the blister pack, the remaining issue is whether the country of origin marking complies with section 134.46, Customs Regulations (19 CFR 134.46). 19 CFR 134.46 contains more restrictive marking requirements designed to alleviate the possibility of misleading an ultimate purchaser with regard to the country of origin of an imported article. Treasury Decision (T.D.) 97-62, published in the Federal Register on August 20, 1997 (62 Fed. Reg. 44211), amended section 134.46 to ease the requirement that whenever words appear on imported articles indicating the name of a geographic location other than the true country of origin of the article, the country of origin marking must appear in close proximity and in comparable size lettering to those words preceded by the words "Made in," "Product of," or other words of similar meaning. Effective September 20, 1997, the revised section 134.46 provides that:

In any case in which the words "United States," or "American," the letters "U.S.A.," any variation of such words or letters, or the name of any city or location in the United States, or the name of any foreign country or locality other than the country or locality in which the article was manufactured or produced appear on an imported article or its container, and those words, letters or names may mislead or deceive the ultimate purchaser as to the actual country of origin of the article, 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.

The country of origin marking on the blister pack is printed on the line immediately below the "Edison NJ" reference. The letters in the country of origin marking are printed in the same size as the letters of "Edison NJ", and the words "Made In" immediately precede the country of origin, China. Therefore, the country of origin marking on the sample blister pack satisfies the requirements of 19 CFR 134.46.

HOLDING:

Based on the information provided, the country of origin marking as demonstrated by the sample pen is sufficiently legible and conspicuous to satisfy the requirements of 19 CFR 134.41. Because the pens will be repacked after importation, the procedures of 19 CFR 134.26 must be followed. The country of origin marking as shown by the sample blister pack is legible and conspicuous and satisfies the requirements of 19 CFR 134.46. Therefore, the proposed country of origin markings for the imported multi-color pens are acceptable under 19 U.S.C. 1304.

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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