HQ 562331 - Country of origin marking of imported shoes; 19 CFR 134.46; 19 CFR 134.47 - United States International Trade Commision Rulings

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HQ 562331

March 26, 2002

MAR-2 RR:CR:SM 562331 KSG

CATEGORY: MARKING

James P. Sullivan
Sullivan & Lynch P.C.
156 State Street
Boston, Massachusetts 02109-2508

RE: Country of origin marking of imported shoes; 19 CFR 134.46; 19 CFR 134.47

Dear Mr. Sullivan:

This is in response to your letter of February 7, 2002, on behalf of Bennett Footwear Group, LLC, requesting a binding ruling on the country of origin marking of imported shoes and shoe boxes. You submitted a sample for our examination.

FACTS:

Bennett Footwear Group, LLC, intends to import shoes that are made in China into the port of Boston, Massachusetts. The girl's footwear has a sewn label attached to the insole with the caption "Bubblegum USA American Flavour". The shoes are marked in the heel with the phrase "Made in China." The footwear will be imported in shoe boxes. The shoe boxes are marked with the caption "Bubblegum USA American Flavour" on the top, the end panels, and on one side panel of the box. The other side panel is marked "BG USA." The phrase "Made in China" appears on one of the end panels in contrasting color lettering. You submitted a trademark application for the phrase "Bubblegum BG USA American Flavour" that was filed on June 3, 2000.

You ask whether the shoes and shoe box bearing the proposed marking satisfy the requirements of 19 U.S.C. 1304.

2

ISSUE:

Whether the proposed marking of the imported shoes and shoe box satisfy 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 134.46, 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 side(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.

You have provided a pending trademark registration application with the U.S. Patent and Trademark Office for the "Bubblegum BG USA American Flavour" caption for articles of leather and imitation leather. 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

We find, based on our examination of the sample, that the caption "Bubblegum USA American Flavour" is potentially misleading to ultimate purchasers with regard to the origin of the shoes. Since the shoes and the shoe box bear the caption "Bubblegum USA American Flavour", and a trademark registration application has been filed, the requirements set forth in 19 CFR 134.47 are applicable. We find that the shoe, marked as described above, satisfies the requirements of 19 CFR 134.47, because "MADE IN CHINA" appears in close proximity to the caption that includes a reference to the U.S.

With regard to the shoe box, we find that the side panel that bears the phrase "BG USA," which standing alone is not a registered trademark, triggers 19 CFR 134.46 because the phrase references the U.S. and is potentially confusing to an ultimate purchaser with regard to the origin of the shoes. Since 19 CFR 134.46 is triggered with regard to the side panel, the phrase "Made in China" must appear on this side panel. The other side panel, the end panels and the top of the box that bear the caption "Bubblegum USA American Flavour" trigger the requirements of 19 CFR 134.47. The marking "MADE IN CHINA" in contrasting color lettering on the end panel of the box satisfies the requirements of 19 CFR 134.47.

HOLDING:

The shoes, marked as described above, trigger the requirements of 19 CFR 134.47. The proposed marking "MADE IN CHINA" in the heel would satisfy the requirements of 19 CFR 134.47.

The side panel of the shoe box marked "BG USA" triggers the requirements of 19 CFR 134.46 and therefore, the phrase "MADE IN CHINA" or a similar phrase must appear on the same panel of the box.

The other side panel, the end panels and the top of the box that bear the caption "Bubblegum USA American Flavour" trigger the requirements of 19 CFR 134.47. The proposed marking "MADE IN CHINA" in contrasting color lettering on the end panel would satisfy the requirements of 19 CFR 134.47.

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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