HQ 562815 - Affirmation of NY J85646; Country of origin marking of imported footwear; 19 C.F.R. 134.46; Close proximity; Comparable size - United States International Trade Commision Rulings

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HQ 562815

October 1, 2003

MAR-2 RR:CR:SM 562815 SS

CATEGORY: MARKING

John B. Pellegrini, Esquire
McGuireWoods LLP
Park Avenue Tower
65 East 55th Street
New York, NY 10022-3219

RE: Affirmation of NY J85646; Country of origin marking of imported footwear; 19 C.F.R. 134.46; Close proximity; Comparable size

Dear Mr. Pellegrini:

This is in response to your letter of July 24, 2003, on behalf of Trade Winds Importing, LLC, requesting reconsideration of New York Ruling Letter (“NY”) J85646, dated July 2, 2003, regarding the country of origin marking of certain imported footwear. A sample of the boot at issue was submitted with your letter for review.

FACTS:

The subject footwear is a woman’s leather upper boot, approximately 7 inches high, with an extended tongue (2-1/2 inch textile fabric extension), a lace closure, a 2-inch textile fabric topline collar flap (textile flap stitched to top of leather boot shaft) and a rubber/plastic outer sole and heel. The tongue has two sewn-on textile patches, one in the front just below the topline (at the top of the leather portion of the tongue) and the other on the inside surface near the top of the fabric portion of the tongue. The patches both depict an American flag with yellow stars and stripes on a dark gray background and the letters “USA” placed in the flag’s upper right quarter. The boot is constructed to allow the textile collar flap and textile fabric extended tongue to be folded down (the textile collar flap can be secured against the leather boot shaft by means of two snaps). When the textile fabric extended tongue is folded down, the inside top portion of the tongue is folded over the shoelace as a covering flap and the “inside” flag patch with the letters “USA” becomes conspicuous and visible.

The country of origin marking appears as a sewn-on textile label imprinted with the words “MADE IN BRAZIL” in 1/8-inch tall legible capital letters visible against a black background. This marking label is situated on the inside of the tongue near the top of the leather portion. It is located on the inside of the tongue at approximately the same location as the flag patch on the front of the tongue. When the tongue is extended in the upright position, the marking label is located approximately 1-1/2 inches below the flag patch (which is upside down in this position) on the inside of the tongue. The marking label is sewn just below the point at which the fabric portion of the tongue is folded forward over the laces. In addition, the bottom of the rubber outer sole of this boot is also marked with stamped-on legible lettering “MADE IN BRAZIL” just above the boot size designation lettering indicating “6M.”

In NY J85646, dated July 2, 2003, Customs held that the special marking requirements of 19 C.F.R. 134.46 were triggered because the “very location of the flags and the large, half-inch tall block letters ‘USA’ positioned so prominently at the front and the top portion of boot can easily mislead or even deceive the consumer as to the true origin of the footwear.” NY J85646 also stated that the proposed marking did not satisfy the “in close proximity” marking requirements and was not an acceptable country of origin marking for the imported footwear.

You contend that the manner and the location of the country of origin marking labels present on this boot are adequate and conspicuous enough not to trigger the close proximity requirements of section 134.46 of the Customs Regulations. Even if the labels are considered potentially misleading, you submit that the origin label satisfies the requirements of 19 C.F.R. 134.46.

ISSUE:

Whether the proposed marking of the imported footwear 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 C.F.R. Part 134), implements the country of origin marking requirements of 19 U.S.C. 1304.

Section 134.46, Customs Regulations (19 C.F.R. 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. The purpose of the provision is 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 first issue presented is whether the special marking requirements of 19 C.F.R. 134.46 are triggered in this case. You argue that section 134.46 is inapplicable here because the purchaser will recognize the “USA” and flag symbol as a decorative design or symbol that is not likely to mislead or deceive the purchaser as to the actual origin of the imported good. 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 134.46 are triggered, on a case-by-case basis.

In NY H85899, dated December 13, 2001, Customs considered whether the proposed marking “Made in Indonesia” on a sewn-in label situated at the top of a shoe’s tongue was acceptable country of origin marking for imported footwear which also had a decorative depiction of an American flag on the toe cap. Customs held that where the American flag was used as a symbol or decoration in the overall design of an item, the presence of the flag may not reasonably be construed as indicating the country of origin of the article on which it appears. Thus, the flag decoration did not trigger the proximity requirements of Section 134.46 of the Customs Regulations. See also HQ 561767, dated October 24, 2000 (presence of Union Jack flag insignia on watch held not to trigger 19 C.F.R. 134.46 because it was used in a decorative context) and HQ 733795, dated February 15, 1991 (garments printed with American flag held not to trigger 19 C.F.R. 134.46 because flag was an integral part of the design concept of the attire). The instant case is distinguishable since the boot has both a flag and the letters “USA” prominently displayed on the tongue.

In HQ 561213, dated February 16, 1999, Customs considered a shoe with a patch on the outside of the tongue which included the initials “U.S.M.C.” and the words “Iwo Jima 1945”. There was also an image of an American flag on the patch. The shoe had a label sewn on the inside of the tongue which indicated “Made in Taiwan”. Customs determined that the patches at issue were symbols or part of the decoration of the footwear and would not mislead the ultimate purchaser regarding the origin of the footwear. In determining that the patches did not trigger the requirements of 19 C.F.R. 134.46, Customs noted the patches depicted a famous photograph involving the raising of the U.S. flag by U.S. Marines at the battle of Iwo Jima during World War II and that an ultimate purchaser would immediately recognize this famous picture. Accordingly Customs stated that the reference to “U.S.M.C.” would not mislead the ultimate purchaser regarding the origin of the footwear because it would be understood that the “U.S.M.C.” was a reference to the United States Marine Corps and did not pertain to the country of origin of the shoes. In the instant case the flag and letters “USA” appear with no other context which may mislead the ultimate purchaser.

In HQ 562437, dated September 13, 2002, Customs held that the special marking requirements of 19 C.F.R. 134.46 were triggered because the “U.S.A.” lettering on backpacks would likely cause confusion and mislead the consumer that the backpacks were American products. Customs believed the words “Eastpak U.S.A.” would not be recognized by the ultimate purchaser solely as a marketing concept or a decorative design or symbol. Accordingly, the letters “U.S.A.” may mislead or deceive an ultimate purchaser as to the origin of a good and trigger the special marking requirements of 19 C.F.R. 134.46. See also HQ 562331, dated March 26, 2002 (“BG USA” on side panel of shoe box triggered 19 C.F.R. 134.46 because the phrase references the U.S. and is potentially confusing to the ultimate purchaser with regard to the origin of the shoes) and HQ 734144, dated July 5, 1991 (“Designed in U.S.A.” on label for footwear connotes a different country than the country of origin of the article and the marking must satisfy the requirements of 19 C.F.R. 134.46).

Furthermore, in HQ 735213, dated June 23, 1993, Customs considered retail packaging which depicted a red, white and blue flag that resembled the flag of the United States. The word “Designed” was displayed immediately above the flag in capital letters and “in USA” was displayed immediately below the flag in capital letters. Customs stated that the presence of symbols associated with a country other than the country of origin may mislead the ultimate purchaser as to the country of origin and that “this is especially true where the foreign symbols are more readily visible than the country of origin marking.” Thus, Customs held that the requirements of 19 C.F.R. 134.46 were triggered. See also HQ 729096, dated January 2, 1986 (due to the presence of prominently displayed flags associated with a country other than the country of origin on athletic footwear and shoe boxes, the country of origin marking at the base of the tongue or inside the heel was not conspicuous), HQ 735214, dated October 22, 1993 (hang tag on boot with letters “USA” after the company name along with an American flag triggered the special marking requirements of 19 C.F.R. 134.46) and HQ 735028, dated June 28, 1993 (hang tags resembling an Australian flag with references to “Australia” triggered the requirements of 19 C.F.R. 134.46).

Applying these rulings to the instant case, Customs finds that the requirements of 19 C.F.R. 134.46 are triggered. The flag and letters “USA” with no other context are potentially confusing to the ultimate purchaser. Customs does not believe that the flag and letters “USA” would be readily recognized by the ultimate purchaser solely as a decoration. The multiple use and prominence of the label with the American flag and “USA” is such that it may mislead or deceive the ultimate purchaser as to the actual country of origin of the article. Consequently, the country of origin must appear “in close proximity” to the U.S. reference and in lettering of “at least a comparable size”.

Customs has previously ruled that in order to satisfy the close proximity requirement of this regulation, the country of origin marking must appear on the same side(s) or surface(s) on which the name of the locality other than the country of origin appears. See C.S.D. 86-19. In HQ 773736, dated June 19, 1991, Customs held that a package header with a U.S. locality printed on the front and back had to be marked with its country of origin on both sides. Since the shoes contain the flag and reference to “USA” on the front and back of the tongue, the tongue will have to be marked with its country of origin on both sides.

With respect to the “comparable size” requirement, Customs has interpreted the word "comparable" to mean "sufficiently similar" rather than “identical”. HQ 734148, dated February 13, 1992. Although no set ratio of print sizes or types is mandated by the regulations, Customs has stated that a print size for the country of origin marking which is half the type size used to denote another locality would not be in compliance with the comparable size requirement of the marking regulation. C.S.D. 79-36 (July 24, 1978). See also HQ 733736, dated June 19, 1991, and C.S.D. 90-41 (January 18, 1990).

Given this framework within which to assess the comparable size issue, we find that the disparity between the letters “USA”--printed in bold 1/2 inch print--and the “MADE IN BRAZIL” country of origin marking printed in 1/8 inch print is not “sufficiently similar.” The country of origin marking is in noticeably smaller print than the lettering used on the labels with “USA” and the flag. Further, because the ultimate purchaser's attention will be drawn to the more prominent print on the flag label and away from the smaller print, the possibility of misleading or deceiving him/her as to the origin of the imported article is increased. Thus, the country of origin marking does not appear in comparable size print, as required by 19 C.F.R. 134.46. Accordingly, we find that the “MADE IN BRAZIL” marking on the inside of the tongue must be enlarged.

Since the current country of origin marking does not meet the proximity and size requirements of section 134.46, we find it necessary to require enhanced country of origin marking to give effect to the purpose of 19 C.F.R. 134.46 so that the ultimate purchaser is not misled or deceived as to the actual origin of the product he/she is contemplating purchasing. In lieu of placing another country of origin marking on the front of the tongue, placing an additional country of origin marking on a hang tag attached to the shoes may contribute towards satisfying this requirement. If a hang tag is used, it must be prominently displayed on the front of the shoes. In this location, it is likely to attract the attention of a potential purchaser. The country of origin marking on the hang tag should be large enough and in such a location that it can be noticed from a casual inspection of the shoes. The combination of increasing the size of the existing lettering on the label on the inside of the tongue and adding a hang tag to indicate the country of origin should inform the ultimate purchaser of the country of origin of the shoes and clarify any confusion as to the origin of the shoes.

HOLDING:

NY J85646 is affirmed. However, an alternative method of correcting the insufficient marking is authorized as indicated above.

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, Director

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