HQ 562437 - Country of origin marking of imported backpacks; 19 CFR 134.46; 19 CFR 134.47 - United States International Trade Commision Rulings

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HQ 562437

September 13, 2002

MAR-2 RR:CR:SM 562437 KSG

CATEGORY: MARKING

Larry Ordet, Esq.
Sandler, Travis & Rosenberg, P.A.
5200 Blue Lagoon Drive
Miami, Florida 33126-2022

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

Dear Mr. Ordet:

This is in response to your letter of April 3, 2002, and a letter of August 9, 2002, from David Cohen of your firm, on behalf of Jansport, Inc., requesting reconsideration of NY H86678, dated February 11, 2002, regarding the country of origin marking of certain imported backpacks. You submitted two samples that may differ from the samples that the New York Customs office examined. At the request of David Cohen of your firm, a conference was held on this matter at Headquarters.

FACTS:

Jansport, Inc. proposes to import textile backpacks from China, Vietnam or Thailand. On the outside of each sample backpack appears the words "Eastpak® U.S.A." On one sample, the words appear on a label (1 inch wide by 3 inches long) sewn to the outside of the fabric and, on the other sample, the words are embroidered into the outside of the backpack fabric (in a comparable size to the words on the fabric label). The “U.S.A.” letters are approximately 9 points (1/8 inch high). The words "Eastpak® U.S.A." are enclosed within a red oval and are superimposed upon a red globe. Although “Eastpak” is a registered trademark, the words "Eastpak® U.S.A." together are not.

The backpack will be marked with the country of origin by a white sewn-in label on the inside of the main body of the backpack. The phrase "Made in" will precede the country of origin. Also attached to the backpack will be one or more exterior hangtags each of which will include the words "Eastpak® U.S.A.", but will not include the country of origin of the backpack.

In NY H86678, dated February 11, 2002, Customs held that the special marking requirements of 19 CFR 134.46 are triggered because the “U.S.A.” lettering “would likely cause confusion and may mislead the consumer that the backpack is an American product.” Therefore, NY H86678 stated the country of origin of the backpack should appear on the same side or surface as each reference to “U.S.A.” You maintain that the less stringent requirements of 19 CFR 134.47 apply to the backpacks and that the country of origin marking on the inside of the backpack satisfies those requirements.

ISSUE:

Whether the proposed marking of the imported backpacks 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 134.46, 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.

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. The critical difference between the two is that section 134.46 requires that the name of the actual country of origin appear “in close proximity” to such words and in lettering of at least comparable size. By contrast, section 134.47 is less stringent, providing that when as part of a trade name, trademark or souvenir mark, the name of a location other than the country of origin appears, the name of the actual country of origin must appear in close proximity or “in some other conspicuous location.” In other words, the latter provision triggers only a general standard of conspicuousness.

The first issue presented is whether the less stringent requirements of section 134.47 are triggered in this case. Counsel cites HRL 559896, dated October 16, 1996, in support of its argument that section134.47 (rather than section 134.46) is applicable in this case. HRL 559896 concerned the country of origin marking requirements applicable to a shirt with the logo “TREK USA” embroidered on the breast pocket. The “FACTS” portion of the ruling states that “the logo [“TREK USA] is a registered trademark.” However, the analysis portion of the ruling concluded that:

...’TREK’ is a registered trademark and will not trigger the special marking requirements of 19 CFR 134.46 because the word ‘USA’ is used in conjunction with a trademark. Accordingly, the less stringent requirements of 19 CFR 134.47 are applicable.

We note that the ruling request letter stated that “Trek Bicycle Corp. has as their official logo ‘TREK USA’, which is also a registered trademark.” Therefore, we believe that the holding in HRL 559896 is based upon the facts as provided to Customs by the requestor and as reflected in the “FACTS” portion of the ruling. We do not interpret HRL 559896 as holding that whenever a non-origin geographical reference (such as the letters “U.S.A.” in this case) appears together with a registered trademark, the less stringent requirements of 19 CFR 134.47 (rather than 134.46) apply.

In addition, we note that 19 CFR 134.47 states, in pertinent part, that it applies when “the name of a location in the United States or ‘United States’ or ‘America’ appear” “as part of a trademark” (emphasis added). In this case, the letters “U.S.A.” clearly do not appear as “part of a trademark.”

Your firm’s August 9, 2002, submission raises the issue of whether “Eastpak® U.S.A.” is a “trade name” for purposes of applying the requirements of section 134.47 in this case. However, aside from the assertion that these words constitute a trade name, no information or evidence has been submitted in support of that assertion. In this regard, you ask that we address whether “an application and approval of recordation of a proper trade name with the Customs Service would trigger the more lenient requirements of 19 CFR134.47.” Because we have no indication that your client intends to submit such an application or that it may be approved, we decline to address that issue as we view it as essentially hypothetical in nature. See 19 CFR 177.7(a). Accordingly, based on the facts presented in this case, we find that 19 CFR 134.47 is not triggered in this case.

The second issue presented is whether the special marking requirements of 19 CFR 134.46 are triggered in this case. You argue that section 134.46 is inapplicable here because the purchaser will recognize the "U.S.A." reference as a marketing concept or a decorative design or symbol that is not likely to mislead or deceive the purchaser as to the actual origin of the imported good. You cited to HRL 559118, dated August 18, 1995, in support of your position. Customs held in that case that the words "GANT USA" (superimposed on a shield) embroidered in various locations on a shirt did not trigger the requirements of section 134.46 because such marking was "used as a symbol or decoration and would not be reasonably construed as indicating the country of origin of the particular garment." However, the ruling stated the same words appearing on a label sewn to the inside of the neck area of the shirt is not part of the shirt’s design because this insignia is not visible when the garment is worn. Therefore, it was held that the words “GANT USA” appearing on the inside of the neck of the shirt triggered the special requirements of section 134.46.

As indicated in your August 9, 2002, submission, HLR 559118 is distinguishable from the facts in this case “because it [HLR 559118] was premised on the fact that there is a specific rule on the origin marking of shirts that require the marking to appear on the inside center of the neck. T.D. 54640(6).” There is no such specific rule relating to the location of the country of origin marking for backpacks. Thus, in regard to the shirts involved in HRL 559118, the country of origin marking appeared on the inside center of the neck (as required by T.D. 54640(6)), which is the location consumers expect to find such information. In contrast to HRL 559118, the country of origin marking in the instant case appears on a label sewn to an inside seam of the main body of the backpack. It is necessary for the ultimate purchaser to unzip the backpack to view the origin label. We believe these are significant factual differences.

Customs determines the issue of whether a particular non-origin geographical reference may mislead or deceive the ultimate purchaser as to the actual origin of a good, for purposes of ascertaining whether the requirements of section 13.46 are triggered, on a case-by-case basis. In regard to the specific circumstances of this case, we do not believe that the words “Eastpak® U.S.A.” would be recognized by the ultimate purchaser solely as a marketing concept or a decorative design or symbol. We find that the letters "U.S.A." that appear on the outside of the backpack and on the hangtags attached to the backpack may mislead or deceive the ultimate purchaser as to the origin of the good. We concur with the NY ruling that the special marking requirements of 19 CFR 134.46 are triggered by the “U.S.A.” references on the backpack and hangtags.

HOLDING:

NY H86678 is affirmed.

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,

Myles B. Harmon, Acting Director
Commercial Rulings Division

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