HQ 562215 - Country of origin marking of beer cartons; trademark; Foster’s Australian for Beer; Conspicuous; 19 CFR 134.47; bottom of carton - United States International Trade Commision Rulings

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HQ 562215

August 24, 2001

MAR-2-05 RR:CR:SM 562215 MLR

CATEGORY: MARKING

Harvey A. Isaacs, Esq.
Tompkins & Davidson, LLP
One Astor Plaza
1515 Broadway – 43rd Floor
New York, New York 10036

RE: Country of origin marking of beer cartons; trademark; Foster’s Australian for Beer; Conspicuous; 19 CFR 134.47; bottom of carton

Dear Mr. Isaacs:

This is in reference to your facsimile of August 16, 2001, requesting a ruling on behalf of Miller Brewing Company, regarding the country of origin marking of cartons of beer.

FACTS:

The articles at issue are sealed cartons of beer containing 24 12-ounce bottles, either four 6-packs or two 12-packs, weighing approximately 33 pounds each (if cans are packaged, the cartons weigh 24 pounds). The Foster’s Beer is manufactured in Canada and imported by Miller Brewing Co. (“Century Importers”) under license of Carlton & United Breweries, Melbourne, Australia. The side panels of the cartons of beer are marked with “Foster’s”, Carlton & United Breweries’ trademark “Australian for Beer,” “Imported Lager,” and a description of the bottles contained in the carton. The bottom of the cartons are marked with the following:

Brewed and Bottled under the supervision of Carlton & United Breweries Melbourne, Australia by FBG Breweries, Toronto, Canada Imported By Century Importers, Reston VA  Product of Canada  Union Made

ISSUE:

Whether the cartons are conspicuously marked to satisfy the requirements of 19 U.S.C. 1304 and section 134.47, Customs Regulations (19 CFR 134.47).

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 imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the article 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. 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. Inc., 27 CCPA 297, 302, C.A.D. 104 (1940).

Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. Customs has recognized that the presence of a geographic location other than the country in which the article was produced on an imported article or its container may mislead the ultimate purchaser as to the true country of origin. Section 134.47, Customs Regulations (19 CFR 134.47), provides that when as part of a trademark or trade name or as part of a souvenir marking, the name of a location in the U.S. appears, 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. In other words, if the question concerns a trade name or trademark, the country of origin marking needs only to meet the general standard of conspicuousness. Section 134.1(k), Customs Regulations (19 CFR 134.1(k)), defines “conspicuous” as “capable of being easily seen with normal handling of the article or container.”

Counsel claims that the marking on the bottom of the beer cartons is conspicuous. Counsel cites Headquarters Ruling Letter (HRL) 560697 dated December 17, 1997, and HRL 559748 dated June 12, 1996, as support that the marking on the bottom of the carton is conspicuous.

In HRL 559748, Customs held that the marking on the bottom panel of a wooden box of 20 cigars was a conspicuous location because the marking was readily visible to an ultimate purchaser who inspected the cigar box. In HRL 559748, Customs stated that while a marking appearing on the bottom of a container is generally not a conspicuous location, considering the retail cigar boxes were small and light, an ultimate purchaser could readily manipulate the cigar box to reveal the bold and stamped-in country of origin marking on the bottom panel of the box of 20 cigars, even though the phrase “Zino Relax Sumatra” triggered the marking requirements of 19 CFR 134.47. HRL 559748 considered HRL 735466, dated August 4, 1994, which involved the marking of various small appliances with dimensions akin to shoe boxes or, at most, twice that size. In HRL 735466, it was stated that although the boxes were marked with the article’s origin on the bottom panels, considering the relative small size of the appliance boxes, their ease in handling, and the additional side panel markings, the bottom panel markings were acceptable.

In HRL 560697, Customs considered the marking of various cardboard retail packages: a “Car and Driver Deluxe Auto Emergency Light” in a box measuring approximately 8 ½ x 2 ½ x 3 inches, a “Car and Driver” First Aid Kit in a box measuring approximately 7 ½ x 5 ½ x 2 3/4 inches, and a “Furio Home Recipe Box,” imported in a cardboard box measuring approximately 6 1/4 x 5 x 3 inches. The bottom panels of all boxes were marked with distribution statements that triggered the special marking requirements of 19 CFR 134.46 which were satisfied with the country of origin on the same panel.

In this case, the trademark “Australian for Beer” clearly triggers the marking requirements of 19 CFR 134.47 which requires that the country of origin of the beer be preceded by “Made in,” “Product of,” or other similar words, in close proximity or in some other conspicuous location. Therefore, the question is whether the marking on the bottom of the cartons of beer is conspicuous. Based on the rulings cited above, the bottom panel marking was found to be acceptable as the size of the box permitted the ultimate purchaser to manipulate the packaging so that the country of origin marking could be readily seen. In the case of cartons of beer, it is our opinion that the bottom panel marking is not conspicuous. Cartons of beer are not the type of articles that may be easily manipulated to review the country of origin, as generally beer cartons are fairly heavy and bulky and an ultimate purchaser would not want to turn them over and shake up the contents. Therefore, we find that in order to satisfy the general standard of conspicuous for purposes of 19 U.S.C. 1304 and 19 CFR 134.47, the bottom panel marking set forth in the facts above should appear on one of the side or top panels of the cartons of beer.

HOLDING:

On the basis of the information submitted, we find that in order to satisfy marking requirements of 19 U.S.C. 1304 and 19 CFR 134.47, the bottom panel marking set forth in the “Facts” section above should appear on one of the side or top panels of the cartons of beer, and that the placement of the marking on the bottom panel alone will not be considered to be conspicuous.

A copy of this ruling letter should be attached to the entry documents filed at the time the goods are 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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