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NY J85646





July 2, 2003

CLA-2-64:RR:NC:TA:347 J85646

CATEGORY: MARKING

Mr. John B. Pellegrini
Ross & Hardies
Park Avenue Tower
65 East 55th St.
New York, NY 10022-3219

RE: The country of origin marking of imported footwear; misleading marking.

Dear Mr. Pellegrini:

This is in response to your letter dated June 5, 2003, on behalf of your client Trade Winds Importing, LLC, requesting a ruling as to whether a depiction of a flag and the letters “USA” on the tongue of an imported women’s boot is misleading marking and if its presence will trigger the proximity requirements of Section 134.46 of the Customs Regulations. A sample of the boot marked with its country of origin “MADE IN BRAZIL” was submitted with your letter for review.

The subject footwear is a woman’s leather upper boot, approximately 7 inches high, with an extended tongue, a lace closure, a folded over 2 inch wide textile fabric topline collar flap and a rubber/plastic outer sole and heel. As you state in your letter, the tongue has two sewn-on textile labels, one in the front just below the topline and the other on the inside surface near the top of this extended tongue. The labels 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 stitched to the top of the leather boot shaft to be folded down. When folded down, the flag label with the letters “USA” on the inside top portion of the tongue is also folded over the shoelace as a covering flap and 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 surface and near the top portion of the tongue, but it is behind and sewn just below the point at which the tongue is folded forward over the laces, so that it is not readily seen. 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.” It is your opinion 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 that relate to the presence of misleading or deceptive marking.

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 (or its container) 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.

Section 134.46, Customs Regulations (19 CFR 134.46), deals with cases 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 locality 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, appears 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. In such a case 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.

Although you state that on the instant sample, the flag labels on the boot’s tongue are part of the overall design of the footwear, 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. This office considers the requirements of 19 CFR 134.46 to be triggered and applicable. The name of the actual country of origin must appear “in close proximity” and in comparable size lettering to the letters “USA” on the flag labels, proceeded by the words “Made in”, “Product of”, or other words of similar meaning. We note that 19 CFR 134.47 does provide that when a trademark, trade name, or souvenir marking indicates the name of a country or locality other than the country of origin, the country of origin shall be indicated either “in close proximity or in some other conspicuous location.” This less stringent provision may trigger the more general standard that you ascribe to in your letter and may have lead to your conclusion that the country of origin marking of this sample boot is conspicuous enough. However, since the sewn-on “flag” with “USA” labels are not a registered trademark, trade name or souvenir mark, the more restrictive “in close proximity” marking requirement is applicable.

Therefore, the proposed marking of the women’s boot in the manner described above does not satisfy the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134 and is not an acceptable country of origin marking for the imported footwear. We are returning the submitted sample as you requested.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Richard Foley at 646-733-3042.

Sincerely,

Robert B. Swierupski
Director,

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