HQ 561060 - Country of origin marking for wearing apparel such as skirts, blouses, and trousers with hangtags containing a trademark with a non-origin geographical reference; conspicuous; 19 CFR 134.47; 19 CFR 134.46 - United States International Trade Commision Rulings

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HQ 561060

November 3, 1998

MAR-2-05 RR:CR:SM 561060 RSD

CATEGORY: MARKING

Robert T. Stack, Esq.
Thompkins & Davidson
1515 Broadway
43rd Floor
New York, New York 10035-8901

RE: Country of origin marking for wearing apparel such as skirts, blouses, and trousers with hangtags containing a trademark with a non-origin geographical reference; conspicuous; 19 CFR 134.47; 19 CFR 134.46

Dear Mr. Stack:

This is in response to your letter dated June 25, 1998, on behalf of Jones Apparel Group, Inc., (Jones) requesting a ruling concerning the country of origin marking requirements for various items of wearing apparel. Accompanying your letter were two samples of the types of articles that Jones will be importing.

FACTS:

Jones is a Pennsylvania based company which intends to import women's and men's apparel such as skirts, blouses, trousers, shirts, etc. into the United States. The merchandise will be imported either through JFK Airport or the port of Philadelphia. The shirts and blouses are marked to indicate their country of origin on a sewn-in fabric label in the middle of the back of the neck area. The trousers and skirts will be marked to indicate their country of origin on a fabric sewn-in-label in the center of the back of the waistband area. On the fabric labels, the country of origin is preceded by the words "Made in". In addition, all the garments will have attached hangtag labels with the trademarks "Jones New York", "Jones New York Sport" or "Jones New York Country" printed on them. On the reverse side of the hangtag, additional information regarding the garment such as the product line, size, UPC bar code, and the price will be printed. Presently, the country of origin of the garment also appears on the side of the hangtag that does not have the trademark.

In order to cut costs, Jones wishes to eliminate the country of origin markings on the hangtags. You also indicate that "Jones New York" and "Jones New York Sport" are registered
trademarks and that Jones is in the process of registering the trademark "Jones New York Country" with the United States Patent and Trademark Office. On the sample garments, the only non-origin geographical references are the ones referenced above.

ISSUE:

Whether the country of origin marking must appear on a hangtag if a trademark with a non-origin geographical reference is shown on the hangtag.

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. 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 good 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 at 302; C.A.D. 104 (1940).

Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and the exceptions of 19 U.S.C. 1304. Section 134.1(b), Customs Regulations (19 CFR 134.1(b)), defines "country of origin" as the country of manufacture, production or growth of any article of foreign origin entering the U.S. As provided in section 134.41(b), Customs Regulations (19 CFR 134.41(b)), the country of origin marking is considered conspicuous if the ultimate purchaser is able to find the marking easily and read it without strain.

In determining whether the country of origin marking on the imported apparel satisfies the requirements of 19 U.S.C. 1304, the presence of the trademarked language, Jones New York, or other similar phrases, which appear on hangtags attached to the garments must be taken into consideration. In cases where there is a reference to a location other than the country of origin on imported merchandise, the special marking requirements set forth in sections 134.46 and 134.47, Customs Regulations (19 CFR 134.46 and 19 CFR 134.47), may be applicable. 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.

On August 20, 1997, a final rule document, Treasury Decision (T.D.) 97-72 was published in the Federal Register (62 FR 44211) amending section 134.46 of the Customs Regulations 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. The effective date of the amendment was September 20, 1997. Under the revised 19 CFR 134.46, the requirements of this section are triggered only if it is determined that the references to a locality other than the country of origin may deceive or mislead the ultimate purchaser regarding the actual country of origin of the article. 19 CFR 134.47 provides that when a trademark, trade name, or souvenir marking indicates the name of a country or locality other than the country of origin, the country of origin shall be indicated either "in close proximity or in some other conspicuous location" preceded by "Made in", "Product of", or similar words.

The difference between the two provisions is that 19 CFR 134.46 requires that the name of the actual country of origin shall appear "in close proximity" to the locality name 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 other than the country of origin appears, the name of the actual 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.

You indicate that Jones is in the process of registering "Jones New York Country" as a trademark. Although 19 CFR 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 since the regulation does not specify what evidence is necessary to establish a trademark. However if the application is denied, the requirements of 19 CFR 134.46 may be applicable. See Headquarter Ruling Letter (HRL) 734455 dated July 1, 1992, and HRL 735180 dated May 17, 1994. Therefore, if an application for a trademark has been filed, Custom will allow the more lenient requirements of 19 CFR 134.47 to apply. Accordingly, in this instance, the use of trademarks with a non-origin reference to "New York" triggers the requirement of 19 CFR 134.47 that the country of origin marking be in a conspicuous location. Because Jones does not wish to have a country of origin marking on the hangtags containing the trademarks, we must determine whether having only the marking on the sewn-in-labels on the garments satisfies the requirements of 19 CFR 134.47.

HRL 558741, dated January 4, 1995, involved shorts to which a hangtag cardboard label was attached with a sticker referencing the word "Kalifornia" for which an application for a trademark had been filed with the United States Patent and Trademark Office. Based on this application, Customs determined that the requirements of 19 CFR 134.47 rather than 19 CFR 134.46 would apply. Customs also found that the country of origin marking on the shorts which appeared on a sewn-in-label at the center of the inner rear waistband to be a conspicuous location pursuant to T.D. 71-264(3) (August 18, 1971). We noted that the fabric label also contained the
fiber content and care instructions and that the country of origin was in lettering of sufficient size and boldness to be easily found and read. Consequently, we found that the country of origin on the shorts met the requirements of 19 U.S.C. 1304 and 19 CFR Part 134.

HRL 735019 dated June 28, 1993, involved imported garments such as pants, skirts, jackets, and shirts with buttons and rivets which featured registered trademarks containing the wording "San Francisco, CAL" or "S.F. CAL". The jacket and jeans were marked with their country of origin in the usual locations (i.e., back of the neck area or in the waistband) We determined that this manner of marking was sufficiently conspicuous in view of the placement of the country of origin labels and the ease with which they could be read. Accordingly, Customs determined that the requirements of 19 CFR 134.47 were satisfied and that the jeans and jacket were properly marked with their country of origin. Although no samples of the shirts and pants were submitted in that case, we indicated that if they also were conspicuously marked with their country of origin in the manner described, the requirements of the marking statute would be fulfilled. (See also HRL 559712, July 11, 1996, where the country of origin marking on sewn-in-labels in the usual location for various garments satisfied the conspicuous location requirement of 19 CFR 134.47.)

In T.D. 54640(6), 93 Treas. Dec. 301 (1958), Customs determined that wearing apparel, such as shirts, blouses, coats, sweaters, etc., must be legibly and conspicuously marked with the name of the country of origin by means of a fabric label or label made from natural or synthetic film sewn or otherwise permanently affixed on the inside center of the neck midway between the shoulder seams or in that immediate area or otherwise permanently marked in that area in some other manner. The country of origin marking on the sewn-in fabric label on the back of the neck area of the sample blouse in this case satisfies the requirements of T.D. 54640(6) as well as the conspicuousness location marking requirement set forth 19 CFR 134.47.

T.D. 71-264(3) provides that:

Trousers, slacks, jeans, and similar wearing apparel shall be marked to indicate the country of origin by means of a permanent label affixed in a a conspicuous location on the garments, such as the inside of the waistband.

Therefore, the country of origin marking on the sewn-in-label on the sample skirt in this case satisfies the conspicuous location requirement of 19 CFR 134.47. Accordingly, because the country of origin marking at the neck area or in the waistband area satisfies the requirements of 19 CFR 134.47, we find that it is unnecessary to require an additional country of origin marking on the hangtags containing the trademarks with the non-origin geographical references.

HOLDING:

On the basis of the information described above and samples submitted, we find that the country of origin marking on the sewn-in-labels on the garments would be sufficient to satisfy
the 19 CFR 134.47 and 19 U.S.C. 1304. It is unnecessary to place an additional country of origin marking on the hangtag containing a trademark with a non-origin geographical reference.

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
Commercial Rulings Division

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