HQ 562747 - Country of origin marking requirements applicable to a video game; exception from marking; special marking requirements; 19 U.S.C. §1304 - United States International Trade Commision Rulings

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HQ 562747

July 29, 2003

MAR-2-05 RR:CR:SM 562747 EAC

CATEGORY: MARKING

Ms. Ruby Wood Sevcik
Trade Compliance Manager
Nokia Inc.
6000 Connection Drive
Irving, TX 75039

RE: Country of origin marking requirements applicable to a video game; exception from marking; special marking requirements; 19 U.S.C. §1304

Dear Ms. Sevcik:

This is in response to your letter, dated April 29, 2003, submitted on behalf of Nokia Inc. (“Nokia”), requesting a binding ruling pertaining to the proper marking scheme for a video game. You have submitted a sample item and, as requested, your sample will be returned (under separate cover).

FACTS:

You state that Nokia intends to import the video game entitled “Space Impact” into the United States through the port of Dallas, Texas. The components of the game that are under consideration in this case are the game cartridge, container, instructions, and labeling which will be sold at retail. A brief description of each of these items follows.

The “N-Gage Game Card” (the “cartridge”) is a small rectangular cartridge. Though specific information has not been provided regarding the contents of the cartridge, it is our understanding that the information for Space Impact has been recorded and stored onto the cartridge. The cartridge becomes functional when inserted into the “N-Gage Game Deck”, which appears to be the central processing unit of a hand-held video gaming system. The deck is able to accept interchangeable game cartridges similar to the one under consideration. This particular cartridge will be manufactured in, and imported from, Taiwan. The marking “Made in Taiwan” is plainly visible on the back of the sample game cartridge that has been provided.

The game’s container (“the case”) is imported with an inclusive internal clear plastic cartridge holder (“the insert”) installed. Both items will be manufactured in, and imported from, China (as a single unit). Though somewhat smaller, the case resembles those that commonly accompany CD’s or DVD’s when sold at retail. The marking “Made in China” is molded along the spine of the sample case that has been provided. However, the marking will be concealed by the decorative label (“the label”) that is inserted into the case subsequent to entry into the United States.

Nokia is uncertain as to where the label and instruction booklets for the game will be printed. It has been stated that the label may be printed within the United States or “elsewhere.” Similarly, the game instructions and user’s guide may be printed within the United States or “elsewhere.”

Nokia has further stated that a small CD may be included with the video game at a future date and has, therefore, submitted a sample CD. The CD is held within a plain white cardboard sleeve inside the case. The CD and accompanying sleeve lack any identifying country of origin markings. For purposes of this ruling, we will assume that the CD may serve as a replacement for the game cartridge, in that the information for Space Impact may be recorded and stored onto the CD, rather than the cartridge, at a future date.

Based upon the foregoing information, Nokia has requested permission to have the foregoing items excepted from individual marking when imported into the United States. Additionally, Nokia seeks Customs and Border Protection (“CBP”) approval for the marking on the game’s label to indicate: “Game Made in Taiwan. Case Made in China. Printed in [xxxx].”

ISSUES:

Whether the items described above may be excepted from individual marking when imported into the United States.

Whether the proposed marking scheme set forth above is acceptable under 19 U.S.C. §1304.

LAW AND ANALYSIS:

Exception from Individual Marking

Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. §1304), provides that, unless excepted, every article of foreign origin imported into the United States shall be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the article (or container) will permit, in such a manner as to indicate to the ultimate purchaser in the United States 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., 27 C.C.P.A. 297, 302 (1940).

Part 134 of the Customs Regulations implements the country of origin marking requirements and exceptions of 19 U.S.C. §1304. Section 134.41(b), mandates that the ultimate purchaser in the United States must be able to find the marking easily and read it without strain.

Articles for which the marking of the containers will reasonably indicate the origin of the article are excepted from marking under 19 U.S.C. §1304(a)(3)(D). For an exception to be granted under 19 U.S.C. §1304(a)(3)(D), generally the article must be imported in a marked retail container which will reach the ultimate purchaser unopened. See also, 19 CFR 134.32(d).

However, where imported articles will be repackaged in the United States, such as in the present case, the provisions of 19 CFR 134.26 are applicable. Section 134.26(a) provides that if an article subject to country of origin marking is intended to be repacked after its release from CBP custody, or the port director having custody of the article has reason to believe that the article will be repacked after its release, the importer shall certify to the port director that: 1) if the importer does the repacking, "he shall not obscure or conceal the country of origin marking appearing on the article, or else the new container shall be marked to indicate the country of origin of the article..." [emphasis added]; or 2) that if he does not repack the article he will give notice to subsequent purchasers or repackers of their obligations under section 19 U.S.C. 1304 and Part 134, Customs Regulations.

As applied to the case under consideration, the imported game cartridges (or CD’s), printed items, and cases may be excepted from individual marking pursuant to 19 CFR 134.32(d), provided their respective outer containers are marked with the proper country of origin and that CBP officials at the port of entry are satisfied that the articles will reach the ultimate purchaser in properly marked containers and the certification requirements of 19 CFR 134.26 are executed.

Proper Marking for the Game as Sold at Retail

The final issue we must consider in this case is whether Nokia’s proposed marking for the video game will satisfy the requirements of 19 U.S.C. §1304. As stated above, Nokia seeks CBP approval for the marking on the game’s label to indicate: “Game Made in Taiwan. Case Made in China. Printed in [xxxx].” For purposes of this ruling, we will assume that Nokia intends to place the proposed marking within the same general location on the same side or panel of the game case and that all letters used in the marking will be of comparable size.

Under section 134.41(b), Customs Regulations, the country of origin is considered to be conspicuous if the ultimate purchaser in the United States is able to find the marking easily and read it without strain. Therefore, assuming that the proposed marking satisfies the general requirements for permanency, legibility and conspicuousness, we find that the proposed marking is acceptable.

HOLDING:

Based upon the information provided, it is our opinion that the imported game cartridges, cases, and printed items may be excepted from individual marking pursuant to 19 CFR 134.32(d), provided their respective outer containers are marked with the proper country of origin and that CBP officials at the port of entry are satisfied that the articles will reach the ultimate purchaser in properly marked containers and the certification requirements of 19 CFR 134.26 are executed. With respect to the proper marking for the game as sold at retail, we find that the marking proposed above is acceptable provided that the general requirements for permanency, legibility and conspicuousness are met.

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 CBP officer handling the transactions.

Sincerely,

Myles B. Harmon, Director

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