HQ 563116 - Country of origin marking requirements applicable to video games; disjunctive markings; Nokia; video game card cartridges; 19 U.S.C. §1304 - United States International Trade Commision Rulings

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HQ 563116

November 10, 2004

MAR-2-05 RR:CR:SM 563116 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 video games; disjunctive markings; Nokia; video game card cartridges; 19 U.S.C. §1304

Dear Ms. Sevcik:

This is in response to your letter, dated September 9, 2004, submitted on behalf of Nokia Inc. (“Nokia”), requesting a binding ruling pertaining to the marking requirements applicable to certain video games.

FACTS:

Nokia intends to import video game cartridges from various countries. We note that the games under consideration in this particular case are of the same general nature as those considered in Headquarters Ruling Letter (“HRL”) 562747 dated July 29, 2003, which was also provided to you on behalf of Nokia. As sold at retail, each game product will consist of a game card cartridge, game container, game pamphlets, and product labeling. The information for the actual video game is stored on the game card cartridge, a small rectangular cartridge referred to as the “N-Gage game card.” For purposes of this ruling, we assume that each video game product will include only one game card cartridge. Each game card cartridge becomes functional when inserted into the “N-Gage Game Deck”, which is capable of accepting interchangeable game card cartridges.

Concerning the marking and packaging of the video games, we note that the backs of the game card cartridges will be marked with their country of origin. For example, the sample cartridge is marked “MADE IN TAIWAN”. Although somewhat smaller, the game containers which hold the game card cartridges resemble those that commonly accompany CD’s or DVD’s at retail. The spines of the containers will be molded with country of origin information. However, this particular marking will be concealed by decorative sleeves that will be placed upon the containers prior to sale at retail. Additionally, the game’s instructions and user’s guide pamphlets will bear country of origin information indicating where the items were printed.

As stated above, the game card cartridges will be imported into the United States from a number of countries. After entry, the game card cartridges will be placed into inventory. Instead of matching a game card cartridge with a game container (with decorative sleeve) that is labeled with the correct country of origin information, Nokia proposes to mark the game package sleeves with: “Game Card Made in One of the Following: Taiwan, Korea, China, Germany or USA. See Part for Origin. Case Made in [xxxx]. Printed in [xxxx].” Under this proposed marking, we note that Nokia intends to specifically identify the country of origin for the containers and printed materials.

ISSUE:

Whether the marking proposed above satisfies the applicable marking requirements.

LAW AND ANALYSIS:

Section 304 of the Tariff Act of 1930 (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 its 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. Friedlander & Co., 27 C.C.P.A. 297 at 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), the article must generally be imported in a marked retail container that will reach the ultimate purchaser. 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.

Similar to HRL 562747, the imported game card cartridges, printed items, and containers in this case may be excepted from bearing individual markings 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.

Regarding whether the articles will reach the ultimate purchaser in properly marked containers, please be advised that CBP policy is that, in most circumstances, it is not acceptable for purposes of 19 U.S.C. §1304 to mark an article with the legend "Product of ____ or ____". In C.S.D. 89-111, certain effervescent enzymatic cleaner tablets from either West Germany or the U.S. were packaged into retail containers. While it was acknowledged that the seller could have avoided expense by using the disjunctive marking, "Tablets Made in West Germany or the United States", CBP held that fully accurate marking would not amount to an economic prohibition, and, therefore, required the packages to be marked with only the actual country of origin. Otherwise, the disjunctive marking would do no more than indicate the possibility that the tablets were of foreign origin.

CBP has permitted markings which direct the ultimate purchaser to inspect the actual article for country of origin information when such country of origin markings are “discoverable upon a casual examination of the article.” See, for example, HRL 559753 dated August 8, 1996, and HRL 562832 dated October 10, 2003. However, such markings do not satisfy the applicable requirements when the actual articles are “not packaged in such a way to make it feasible to take apart the packaging in order to view the country of origin prior to purchase.” See, HRL 562285 dated April 29, 2002.

As applied, we assume that, as with many video game products on the market, the game containers in this case will be sealed when purchased by the ultimate purchaser. This will prevent the ultimate purchaser from inspecting the cartridge to obtain country of origin information prior to purchase. Therefore, as country of origin information is not discoverable upon a casual examination of the products, we find that directing the ultimate purchaser to “See Part for Origin” is not permitted under the applicable marking requirements. HOLDING:

Based upon the information provided, it is our opinion that the imported game cartridges, containers, 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 regards to whether the articles will reach the ultimate purchaser in properly marked containers, we find that a disjunctive marking, such as that proposed above, may not be used to indicate the country of origin of the game card cartridges. Furthermore, assuming the game containers will be sealed at retail, we find that directing the ultimate purchaser to “See Part for Origin” is not permitted under the applicable marking requirements.

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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