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HQ 562036





May 18, 2001

MAR-2 RR:CR:SM 562036 KSG

CATEGORY: MARKING

Daniel J. Gluck, Esq.
Serko & Simon LLP
One World Trade Center
Suite 3371
New York N.Y. 10048

RE: Country of origin marking of imported soft-sided coolers; 19 CFR 134.46; 19 CFR 134.47

Dear Mr. Gluck:

This is in response to your letters of June 8, 2000, and February 2, 2001, on behalf of California Innovations, Inc. requesting a binding ruling on the country of origin marking of imported soft-sided coolers. You submitted sample coolers for our examination.

FACTS:

California Innovations, Inc. imports soft-sided coolers that are made in foreign countries. The logo of the company is the words "California Innovations" with a rising sun. The colors used in the logo include lavendar, yellow/orange and black. You state that the logo is a decorative feature of the coolers. The logo appears prominently on the front of the cooler. The logo also appears on the hangtags and packaging materials. You state that the "California Innovations" logo is the subject of a pending trademark registration application.

Five of the samples provided are marked as follows: "Product of Taiwan, finished in China." One sample is marked "Product of Myanmar." One sample is marked "Made in China."

The logo appears prominently on the front of the various coolers, and on the hangtags, usually on the front side of a four-sided folded hangtag and sometimes also on the back side of the hangtag. The country of origin of the coolers is marked on a cloth tag sewn inside the coolers. The hangtags contain the logo and also the company name followed by a Canadian address and the country of origin of the cooler, on the front of the hangtag. On the back of the hangtags, there is warranty information,

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including a Canadian address where defective products can be sent to, a website address, and patent information. Some of the hangtags attached to the samples bear the country of origin in comparable size to the Canadian address on the back.

One sample submitted was packaged in a box. On the box, the logo appears on all four sides and on the box lid. On two sides of the box, there is warranty information and patent information. On the other two sides of the box, the following appears: "Designed and imported exclusively by CALIFORNIA INNOVATIONS INC., Toronto, Canada M2P 2A9, Golf pack cooler MADE IN CHINA, Ice pack MADE IN CANADA, 1997 California Innovations Inc."

On two samples submitted, there is a sleeve covering the upper flap of the cooler bearing the logo. On the front of the sleeve, the following appears: "Designed and imported exclusively by CALIFORNIA INNOVATIONS INC., Toronto, Canada M2P 2A9, MADE IN TAIWAN, FINISHED IN CHINA, 1999 California Innovations Inc." On the inside of the flap, there is website information and patent information.

You asked if the logo triggers the requirements of 19 CFR 134.46 or 134.47 and if the marking requirements regarding the coolers would be affected if 19 CFR 134.47 is eliminated as proposed in a Notice of Proposed Rulemaking published in the Federal Register on January 26, 2000 (65 FR 4193).

ISSUE:

Whether the proposed marking of the imported coolers 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.

In view of the proposed elimination of section 134.47, we will first address whether the requirements of 19 CFR 134.46 are triggered by the non-origin references on the samples submitted. Section 134.46, Customs Regulations (19 CFR 134.46), as revised by T.D. 97-72, dated August 20, 1997, 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.

Section 134.46 provides that its special marking requirements are triggered only when the non-origin reference may mislead or deceive the ultimate purchaser as to the actual country of origin of the article. Customs has ruled that in order to satisfy the “close proximity” requirement, the country of origin marking must appear on the same sides(s) or surface(s) in which the name of the locality other than the country of origin appears. See Headquarters Ruling Letter ("HRL") 708994, dated April 24, 1978.

Customs has considered in a series of ruling letters the question of whether a non-origin reference to a location is potentially misleading or deceptive for the ultimate purchaser as to the origin of the imported good. In HRL 561285, dated March 11, 1999, Customs concluded that jeans bearing the marking “London Jeans” that were made in Canada did not trigger the requirements of 19 CFR 134.46 because the word “London” was used as a decoration and would not reasonably be construed to indicate the origin of the article. Similarly, in HRL 559267, dated October 20, 1995, Customs examined imported coffee canisters bearing the phrase “By Appointment to His Majesty The King of Sweden.” The coffee canisters were made in Taiwan. Customs stated that the above phrase refers to the coffee and not the canister and the ultimate purchaser would not confuse the reference to the King of Sweden as information concerning the origin of the canister. Customs held that the requirements of 19 CFR 134.46 were not triggered in that case.

This case is similar to the cases discussed above. The references to "California" in the logo clearly are not references to the origin of the coolers but rather to a marketing concept regarding California as being innovative with regard to design and its association with the outdoors and hiking. We do not believe that these references would confuse the ultimate purchaser as to the origin of the coolers. Therefore, we find that the special requirements of 19 CFR 134.46 are not triggered by the logo. The country of origin marking on the cloth labels sewn into the inside of the imported coolers satisfies the requirements of 19 U.S.C. 1304 and 19 CFR Part 134.

The second issue presented is whether the other non-origin references on the hangtags and packaging trigger the requirements of 19 CFR 134.46. Customs held in Headquarters Ruling Letter ("HRL") 732329, dated July 12, 1989, that warranty tags attached to imported wearing apparel, which contained a U.S. address in two locations, did not trigger the requirements of 19 CFR 134.46 so long as the U.S. address appeared for the purpose of giving the warranty holder a place to direct questions and problems related to the warranty. See also HRL 732816, dated November 24, 1989, and HRL 561301, dated March 18, 1999. Website information is similarly included for the purpose of providing the consumer with a contact point. Similarly, patent information is clearly just information regarding the various patents registered regarding the imported merchandise. Therefore, we find that the warranty information, the website information and the patent information do not trigger the requirements of 19 CFR 134.46.

There is a Canadian address that appears on the front of the hangtags preceded by the words "Designed and imported exclusively by." In T.D. 97-72, dated July 1, 1997, Customs determined that a non-origin reference made in the context of a statement relating to any aspect of the production or distribution of a product would be misleading and trigger 19 CFR 134.46. One of the examples given of a misleading marking that would trigger the requirements of 19 CFR 134.46 is "Designed in U.S.A." Based on the above, we find that the "Designed and imported exclusively by" language to be confusing and therefore, these words trigger the requirements of 19 CFR 134.46. The country of origin must appear in close proximity and comparable size to this statement. With regard to the samples submitted, these requirements were met.

You state that the "California Innovations" logo is the subject of a pending trademark registration application with the U.S. Patent and Trademark Office. Customs has previously held that a filed trademark registration application is sufficient evidence of a trademark for purposes of determining whether the requirements of 19 CFR 134.47 (rather than 134.46) apply. See HRL 734455, dated July 1, 1992. Section 134.47 provides as follows:

When as part of a trademark or trade name or as part of a souvenir marking, the name of a location in the United States or "United States" or "America" appear, the article shall be legibly, conspicuously, and permanently marked to indicate the name of the country of origin of the article preceded by "Made in," "Product of," or other similar words, in close proximity or in some other conspicuous location.

The purpose of both provisions (134.46 and 134.47) 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. See HRL 559938, dated February 27, 1997. As discussed above, we find that the references to "California" in the logo are not misleading or deceptive. Accordingly, we find that 19 CFR 134.47 is not triggered in this case.

Lastly, we note that one of the samples is marked "Made in Myanmar." Customs ruled in HRL 732890, dated December 12, 1989, that the name "Myanmar" is not an acceptable country of origin marking; the name "Burma" must appear on articles imported from Burma.

HOLDING:

The references to the "California Innovations" logo with a depiction of the rising sun do not trigger the requirements of 19 CFR 134.46 or 134.47. The country of origin marking on the sewn-in cloth labels inside of the sample imported coolers satisfies the requirements of 19 U.S.C. 1304 and 19 CFR Part 134. However, the phrase "Designed and imported exclusively by California Innovations, Inc., Toronto, Canada" that appears on some of the hangtags triggers the requirements of 19 CFR 134.46.

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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