NY D82291 - COUNTRY OF ORIGIN MARKING OF IMPORTED ARIZONA BEVERAGES; ARTICLE 509 - United States International Trade Commision Rulings

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NY D82291

September 28, 1998

MAR-2 RR:NC:SP:232 D82291

CATEGORY: MARKING

Mr. Nick Sabetti
New Wave Beverage Inc.
4500 Eastgate Parkway
Mississauga, Ontario
Canada L4W 3W6

RE: COUNTRY OF ORIGIN MARKING OF IMPORTED ARIZONA BEVERAGES; ARTICLE 509

Dear Mr. Sabetti:

This is in response to your letter dated September 8, 1998 requesting a ruling on whether the proposed marking "Product of Canada" is an acceptable country of origin marking for imported beverages if other markings "Arizona" and "Manufactured for Ferolito, Vultaggio & Sons, Lake Success, NY 11042 USA, Beverage Marketing USA, Inc." appear on the article which are countries or localities other than the actual country of origin of the article. Marked samples were submitted with your letter for review.

Samples of five products referred to as "Batch #1" were submitted with your request. The products include Arizona Iced Tea with Ginseng Extract, Arizona Lite Chocolate Fudge, Arizona Diet Green Tea, Arizona Strawberry Banana Colada Cocktail and Arizona Green Tea. All of the items are packaged in glass bottles holding 20 ounces, except for the Chocolate Fudge which holds 19 ounces. The "Arizona" name appears on the front and back of the bottle, and on the top of the cap of all of the products. The marking "Manufactured for Ferolito, Vultaggio & Sons, Lake Success, NY 11042 USA, Beverage Marketing USA, Inc." appears on the back label of the bottles either near the ingredients, the nutritional information or the UPC code.

The Iced Tea with Ginseng Extract is in a dark blue bottle with a small figure riding a buffalo on the front. It is marked "Product of Canada" directly below the U.S. address. The Lite Chocolate Fudge Float is in a white and tan bottle with the picture of a woman on the front with the American flag draped over her head. It is marked "Product of Canada" on the bottom front of the bottle and beneath the UPC code in the back. The Diet Green Tea is in a white bottle, and shows figures from the Orient. It is marked "Product of Canada" to the left and beneath the UPC code in the back. The Strawberry Banana Colada Cocktail is a multi-colored bottle which depicts a Western motif, showing cowboys on horseback. It is marked "Product of Canada" directly under the U.S. address and on the bottom of the back of the bottle. The Green Tea is in a light green bottle and shows landscape scenes from the Orient. It is marked "Product of Canada" on the side of the bottle at the base of the neck.

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 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.

The country of origin marking requirements for a "good of a NAFTA country" are also determined in accordance with Annex 311 of the North American Free Trade Agreement ("NAFTA"), as implemented by section 207 of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat 2057) (December 8, 1993) and the appropriate Customs Regulations. The Marking Rules used for determining whether a good is a good of a NAFTA country are contained in Part 102, Customs Regulations. The marking requirements of these goods are set forth in Part 134, Customs Regulations.

Section 134.45(a)(2) of the regulations, provides that "a good of a NAFTA country may be marked with the name of the country of origin in English, French or Spanish. Section 134.1(g) of the regulations, defines a "good of a NAFTA country" as an article for which the country of origin is Canada, Mexico or the United States as determined under the NAFTA Marking Rules.

Section 134.46, Customs Regulations (19 CFR 134.46), deals with cases 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 locality 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, appears 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. In such a case, 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.

In order to satisfy the close proximity requirement, the country of origin marking must generally appear on the same side(s) or surface(s) in which the name or locality other than the actual country of origin appears.

Section 134.47, Customs Regulations (19 CFR 134.47), provides that when the name of a place other than the country of origin appears as part of a trademark or trade name or as part of a souvenir marking, the name of the actual country of origin must appear in close proximity to the place name "or in some other conspicuous location". Whether the country of origin appears "in close proximity" or in some other conspicuous place, the name of the country of origin must be preceded by "Made in," "Product of," or words of similar meaning. In other words, if the question concerns a trademark, trade name or souvenir marking, the country of origin marking need only meet the general standard of conspicuousness.

For the purposes of 19 CFR 134.46, the marking of the imported Iced Tea with Ginseng Extract, Lite Chocolate Fudge Float, Diet Green Tea and Strawberry Banana Colada Cocktail, as described above, satisfies the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134 and is an acceptable country of origin marking for the imported beverages. The marking on the Green Tea is not an acceptable country of origin marking. The Green Tea must be marked "Product of Canada" in close proximity to the U.S address on the back label.

For the purposes of 19 CFR 134.47, if a trademark registration or an application for a trademark registration has been filed with the U.S. Patent and Trademark Office for the name "Arizona", the country of origin need only appear in a conspicuous location preceded by the words "Product of" of "Made In". The country of origin marking which is in close proximity to the U.S. address on the back label would satisfy this requirement. However, if a trademark registration, or an application for a trademark registration has not been filed for the "Arizona" name, then the requirements of 19 CFR 134.46 are in effect, and the products would also have to be marked "Product of Canada" or "Made in Canada" on the front of the bottles.

This ruling is being issued under the provisions of Part 181 of the Customs Regulations (19 CFR Part 181).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist John Maria at 212-466-5730.

Sincerely,

Robert B. Swierupski
Director,

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