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HQ 561143





December 23, 1998

MAR-2 RR:CR:SM 561143 KSG

CATEGORY: MARKING

Carlos A. Miranda III, Esq.
Krafsur Gordon Mott Davis & Woody P.C.
P.O. Box 1322
El Paso, Texas 79947-1322

RE: Recorded videocassettes; 19 CFR 134.46

Dear Mr. Miranda:

This is in response to your letter dated August 27, 1998, requesting a country of origin ruling on behalf of Mediacopy, Inc. regarding the marking of imported recorded videocassettes. Sample recorded videocassettes were submitted for examination.
FACTS:

This case involves imported movie videocassettes ("VC's") that are duplicated and assembled in Mexico. Customs in New York issued binding ruling B87538, which determined that the country of origin of the articles is Mexico. Further, the ruling stated that pursuant to 19 CFR 134.43(e), the words "Assembled in" may be used to indicate the country of origin.

The artwork and text on the sample recorded VC's is on the front and back of the plastic case. You state that the artwork of a recorded VC may and often does contain references to various geographic locations other than the country of origin. The samples are marked with a sticker with the word "Mexico" on the recorded VC case. You ask if the word "Mexico" in 14 point font size printed on the bottom of the VC case on the plastic shrink-wrap through an inkjet printing process would satisfy the country of origin marking requirements.

You submitted four sample VC's. The first sample is for the movie "Napoleon." On the top of this VC case, there is a sticker advertising a trip to Australia, and the Qantas logo. On the back of this case, there is a description of the movie which states that it takes place in Australia. In the credits, there is a reference to the Australian Film Finance Corporation, Film Australia Ltd., and the South Australian Film Corporation. On the bottom of the back of the VC case, there is language stating "Distributed by Orion Home Video" followed by a U.S. address. There is a sticker on the bottom of the VC case that bears the word "Mexico."

The second sample is for the movie "Tomorrow Never Dies." There are no references on the front of the VC case to any locations. There are references to countries other than Mexico on the back of the VC case in the description of the story line of the movie. On the bottom of the back of the VC case, there is language stating "Distributed by MGM Home Entertainment" followed by a U.S. address. There is a sticker on the bottom of the VC case that bears the word "Mexico."

The third sample is for the movie "Getting Even With Dad." The only non-origin reference on the VC case is the distribution information followed by a U.S. address on the back of the VC case. The bottom of the VC case is marked with the sticker "Mexico." Although the description of the story line of this movie is in Spanish, it does not appear that there are any references to locations.

The fourth sample is for the movie "Joey." This VC case contains the same references to a distribution company and a U.S. address as the third sample on the back of the VC case. There is a sticker on the bottom of the VC case that bears the word "Mexico."

ISSUE:

Under the circumstances described above, whether marking the country of origin of the VC's only on the bottom panel of the VC container satisfies the country of origin marking requirements set forth in
19 U.S.C. 1304.

LAW AND ANALYSIS:

Section 304 of the Tariff Act of 1930 (19 U.S.C. 1304), as amended, 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 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 of 19 U.S.C. 1304. Section 134.41(b), Customs Regulations (19 CFR 134.41(b)), requires that the marking be conspicuous enough that an ultimate purchaser will be 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 134.46, Customs Regulations (19 CFR 134.46), as amended by T.D. 97-72 (published in the Federal Register on August 20, 1997, (62 FR 44211)), provides:

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.

Customs has specifically ruled that in order to satisfy the close proximity requirement, the country of origin marking must generally appear on the same side(s) or surfaces(s) in which the name of the geographical reference other than the country of origin appears. The language of section 134.46 provides that its' special marking requirements are triggered only when Customs determines that the non-origin marking may mislead or deceive the ultimate purchaser as to the actual country of origin of the article. This is determined on a case-by-case basis.

You argue that since the artwork and text appearing on the VC's cases vary on a movie- by- movie basis and contain many geographic references other than the country of origin, it should be acceptable to mark the bottom of the VC cases.

As the triggering of 19 CFR 134.46 is determined on a case-by-case basis, we cannot make a blanket determination as to whether all VC's marketed by Mediacopy would trigger these requirements. With regard to the samples submitted, we believe that the marking on all the samples bear potentially misleading or deceptive references on the back of the VC case by listing a distribution company followed by a U.S. address. Customs has consistently held that non-origin geographical references made in the context of a statement relating to any aspect of the production or distribution of the product are misleading to the ultimate purchaser. See T.D. 97-72 supra. Therefore, with regard to these samples, we find that the special marking requirements of 19 CFR 134.46 are triggered and, as a result, country of origin marking is required on the back of the VC case.

As noted above, when 19 CFR 134.46 is triggered, the country of origin must appear on the same panel as the potentially misleading or deceptive geographical name preceded by the phrase "Made in" or similar language (such as "Assembled in"). Thus, in regard to the four sample VC's submitted, placing the country of origin only on the bottom of the VC case would not satisfy the requirements of 19 CFR 134.46. Further, the country of origin marking must be in at least a comparable size print to the non-origin reference.

HOLDING:

With respect to the four sample VC's submitted, we find that the reference on the back of each VC case to a distribution company and its U.S. address triggers the special marking requirements of 19 CFR 134.46. Therefore, the country of origin must appear on the same panel as the U.S. address in at least a comparable size lettering, preceded by the words "Made in", "Assembled in" or other similar words.

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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