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HQ 562729




July 3, 2003

MAR-05 RR:CR:SM 562729 KKV

CATEGORY: MARKING

Mr. Richard Seley
UPS Freight Services, Inc.
4950 Gateway East
El Paso, TX 79905

RE: Country of origin marking requirements applicable to imported Mexican dog chews; 19 CFR 134.47; application for trademark; phrase incapable of registration; 19 CFR 134.46

Dear Mr. Seley:

This is in response to your letter dated February 19, 2003, on behalf of Aspen Pet Products, Inc., addressed to the National Commodities Specialist Division, New York, which requests a binding ruling regarding the tariff classification and country of origin marking requirements applicable to rawhide dog chews imported from Mexico. Although the National Commodity Specialist Division issued a binding ruling regarding the tariff classification of the subject articles (NY J81683, dated April 3, 2003), the portion of your inquiry relating to country of origin marking was forwarded to our office for direct reply. A sample of the rawhide chews and packaging were submitted.

FACTS:

You state that Aspen Pet Products is proposing to import rawhide dog chews which have been processed in the following manner:

Salted, de-haired cow hides, of U.S. origin, are shipped to Mexico. Excess fat and meat are mechanically removed. The hides are split.
The hides are soaked with chemicals to remove preservatives. The hides are cleaned and whitened in drums containing hydrogen peroxide and water. The whitened split is mechanically wrung to remove water. The splits are manually dried.
The cut shapes are manually tied into dog bone shapes. The dog chews are dried in ovens.
The dog chews are basted with flavoring and further dried. The dog chews are packed for consumer retail sale.

The finished rawhide dog chews are packaged and sold in sealed retail bags with header cards which have been printed in the following manner. The front side of the header card is printed with the brand name, the product description, and the phrase “Handcrafted with USA Beef Hides Since 1963.” We are informed that a trademark application has been submitted by the company with regard to this slogan. Your letter states that you propose to mark the middle of the front side of the sealed plastic bag with a circular adhesive sticker printed with the words “Handcrafted in Mexico with USA Beef Hides” in black ink upon a yellow background. A sample of the packaging was submitted for our review, although we note that the phrase used on the sample reads “Handcrafted with USA Beef Hides in Mexico.”

Printed on the back side of the header card, in addition to product information, is the U.S. address of the manufacturer. Directly above the address is the phrase “Made in Mexico for Aspen Pet Products, Inc.”

You state that cow hides exported to Mexico are classifiable in heading 4101 of the Harmonized Tariff Schedule of the United States (HTSUS). Customs ruling NY J81683, dated April 3, 2003, held that the finished dog chews are classifiable in subheading 0511.99.2000, HTSUS.

ISSUE:

Whether the proposed country of origin marking will meet the requirements of 19 U.S.C. 1304.

LAW AND ANALYSIS:

I. Country of Origin

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 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. By enacting 19 U.S.C. 1304, Congress intended to ensure that the ultimate purchaser would be able to know by inspecting the marking on the imported goods the country of which the goods are 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 C.A.D. 104 (1940).

Section 134.1(b), Customs Regulations (19 CFR 134.1(b)), defines "country of origin" as:

The country of manufacture, production, or growth of any article of foreign origin entering the United States. Further work or material added to an article in another country must effect a substantial transformation in order to render such other country the "country of origin" within the meaning of this part; however for a good of a NAFTA country, the NAFTA Marking Rules will determine the country of origin.

Section 134.1(j), Customs Regulations (19 CFR 134.1(j), provides that the "NAFTA Marking Rules" are the rules promulgated for purposes of determining whether a good is a good of a NAFTA country. Section 134.1(g), Customs Regulations (19 CFR 134.1(g)), defines a "good of a NAFTA country" as an article for which the country of origin is Canada, Mexico or the United States as determined under the NAFTA Marking Rules, set forth at 19 CFR Part 102. Section 134.45(a)(2) of the Customs regulations (19 CFR 134.45(a)(2)), provides that a "good of a NAFTA country" may be marked with the name of the country of origin in English, French or Spanish.

Section 102.11, Customs Regulations (19 CFR 102.11), sets forth the required hierarchy for determining whether a good is a good of a NAFTA country for marking purposes. This section states that the country of origin of a good is the country in which:

(1) The good is wholly obtained or produced;

(2 The good is produced exclusively from domestic materials; or

(3) Each foreign material incorporated in that good undergoes an applicable change in tariff classification set out in section 102.20 and satisfies any other applicable requirements of that section, and all other applicable requirements of these rules are satisfied.

Section 102.1(e), Customs Regulations (19 CFR 102.1(e)) defines “foreign material” as “a material whose country of origin as determined under these rules is not the same country or origin as the country in which the good is produced.”

Under the facts presented, raw hides of U.S. origin are exported to Mexico for further processing into finished dog chews. Because the dog chews are processed in Mexico of U.S. material, the dog chews are neither wholly obtained or produced, nor produced exclusively from domestic materials. Because origin may not be determined either under 19 CFR 102.11(a)(1) or (2), analysis continues to 19 CFR 102.11(a)(3).

In response to your ruling request, the National Commodity Specialist Division, New York, issued ruling NY J81683, dated April 3, 2003, which held that the finished imported rawhide dog chews are classifiable in subheading 0511.99.2000, HTSUS, which provides for “Animal products not elsewhere specified or included; dead animals of chapter 1 or 3, unfit for human consumption; other, other, parings and similar waste of raw hides or skins; glue stock not elsewhere specified or included.”

Pursuant to 19 CFR 102.11(a)(3), the country of origin of a good is the country in which each foreign material incorporated in that good undergoes an applicable change in tariff classification as set forth in 19 CFR 102.20, which sets forth the specific tariff classification changes and/or other operations, which are specifically required to occur in order for country of origin to be determined on the basis of operations performed on the foreign materials contained in a good. In the case before us, because the finished dog chew imported into the U.S. from Mexico is classified under subheading 0511.99.2000, HTSUS, the change in tariff classification must be made in accordance with section 102.20(a), Section I: Chapters 1 through 5, subheading 05.01  05.11, HTSUS, which requires “[a] change to heading 05.01 through 05.11 from any other chapter.” The raw animal hides, which are initially classified under heading 4101, HTSUS, are subsequently classified under subheading, 0511.99.2000, HTSUS, as a result of further processing in Mexico. Accordingly, the foreign material incorporated in the dog chew undergoes the applicable tariff shift. Consequently, the country of origin of the finished dog chew is Mexico.

II. Marking Requirements

Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. One of the exceptions to the general marking requirement is codified in 19 U.S.C. 1304(a)(3)(D) (as implemented by 19 CFR 134.32(d)), which provides that an article may be excepted from marking if the marking of its container will reasonably indicate its origin to the ultimate purchaser. As provided in section 134.41, Customs Regulations (19 CFR 134.41), the country of origin marking 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. The degree of permanence of the marking should be at least sufficient to ensure that in any reasonably foreseeable circumstance, the marking shall remain on the article until it reaches the ultimate purchaser unless it is deliberately removed. The marking must survive normal distribution and store handling. Of concern here are the requirements of two related provisions of the marking regulations, section 134.46, Customs Regulations (19 CFR 134.46) and section 134.47, Customs Regulations (19 CFR 134.47).

Specifically, 19 CFR 134.46 requires that, in instances where the name of any city or locality in the U.S., or the name of any foreign country or locality other than the name of the country or locality in which the article was manufactured or produced, appears on an imported article or its container, and those non-origin references may mislead or deceive the ultimate purchaser as to the actual country of origin, 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. Customs has ruled that in order to satisfy the close proximity requirement, the country of origin marking must appear on the same side(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, Customs Regulations (19 CFR 134.47), provides that when as part of a trademark or trade name or as part of a souvenir marking, the name of a location in the U.S. appears, the article shall be legibly, conspicuously, and permanently marked to indicate the name of the country of origin of the article preceded by the words "Made in," "Product of," or other similar words, in close proximity or in some other conspicuous location. In such circumstance, no comparable size requirement exists.

The purpose of both provisions 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 provisions is that 19 CFR 134.46 requires that the name of the actual country of origin appear "in close proximity" to the U.S. reference and in lettering of at least comparable size. By contrast, 19 CFR 134.47 is less stringent, providing that when as part of a trade name, trademark or souvenir mark, the name of a location in the U.S. or "United States" or "America" appears on the imported article, the name of the 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. In either case, the name of the country of origin must be preceded by "Made in", "Product of", or other similar words.

With regard to the marking on the front side of the proposed header card submitted for consideration, you assert that the more lenient requirements of 19 CFR 134.47 are applicable, and have presented evidence that a trademark application has been submitted for the slogan “Handcrafted with USA Beef Hides Since 1963.”

In Headquarters Ruling Letter (HRL) 734455, dated July 1, 1992, Customs considered whether the mere filing of a trademark registration was sufficient evidence to establish a trademark for purposes of section 134.47. In that ruling, Customs held that “until further notice we will continue to accept a filed application with the U.S. Patent and Trademark Office as sufficient evidence of a trademark for the purposes of 19 CFR 134.47.” In such instances, we have also stated that if the application is denied, the more restrictive requirements of 19 CFR 134.46 will need to be satisfied. See HRL 734455, dated July 1, 1992, HRL 735180 dated May 17, 1994 and HRL 560161, dated January 27, 1997.

Upon contacting the Patent and Trademark Office in connection with this matter, we learned that the application for trademark registration still pending. However, in the course of our inquiry we were informed that as a general matter, a mark that is merely descriptive of an attribute of a product, or is primarily geographically deceptively misdescriptive, or a slogan that is considered to be merely informational in nature are not registrable. See, Trademark Manual of Examining Procedure (TMEP) sections 1209.01(b), 1210.01(b) and 1209.03(s).

In light of the information received from the Patent and Trademark Office, we believe that the phrase “Handcrafted with USA Beef Hides Since 1963” is a phrase which is incapable of being trademarked. Therefore, it is our determination that the stricter requirements of 19 CFR 134.46 are triggered. Consequently, the country of origin must appear "in close proximity" to the U.S. reference and in lettering of at least comparable size. We note, however, that if the application is ultimately approved, the more lenient requirements of 19 CFR 134.47 will be applicable.

You propose to mark the front of the retail plastic bag with a circular adhesive sticker with the words “Handcrafted in Mexico with USA Hides. In HRL 712210, dated March 20, 1998, Customs ruled that the phrase “Handcrafted in Mexico” was acceptable for marking imported surfboards. In HRL 561165, dated February 12, 1999, Customs held that the phrase “Crafted in China” was similar in meaning to the phrases “Made in” or “Product of” and thus, was acceptable for purposes of 19 CFR 134.46. Therefore, we find that the phrase “Handcrafted in Mexico with USA Beef Hides” would be acceptable, provided that the font used to print the country of origin is of the same size as that used to print “Handcrafted with USA Beef Hides Since 1963” on the header card and provided the adhesive used to attach the sticker to the retail package is sufficiently strong to prevent the sticker from becoming detached during the course of normal handling. However, as to the label on the sample sticker, which reads “Handcrafted with USA Hides in Mexico” the country of origin is not immediately preceded by the words “Made in “ or “Product of” or words of similar meaning and the font used is smaller than the letters used to print the phrase “Handcrafted with USA Beef Hides since 1963” on the front side of the header card. Moreover, we note that because the sample sticker may be easily peeled away from the package, it is likely that the sticker would become detached during the course of normal handling. Therefore, we find that, as submitted, the sample packaging does not satisfy the special marking requirements of 19 U.S.C. 134.46

With regard to the rear side of the header card, the name and U.S. address of the manufacturer is immediately preceded by the phrase “Made in Mexico” printed in a font of identical size. Accordingly, we find that the rear side of the header card is acceptable for purposes of 19 U.S.C. 1304 and 19 CFR 134.46.

HOLDING:

Despite evidence that an application has been filed with the U.S. Patent and Trademark Office, where that application has been filed in connection with a phrase which is incapable of registration, the stricter requirements of 19 CFR 134.46 are triggered. The phrase “Handcrafted in Mexico with USA Hides” would be acceptable for purposes of 19 U.S.C. 1304 and 19 CFR 134.46, provided that the font used to print the country of origin is of the same size as that used to print “Handcrafted with USA Beef Hides Since 1963” and provided the adhesive used to attached the sticker to the retail package is sufficiently strong to prevent the sticker from becoming detached during the course of normal handling. However, the label on the sample sticker, which reads “Handcrafted with USA Hides in Mexico” is not acceptable for purposes of 19 CFR 134.46.

The rear side of the header card, upon which the phrase “Made in Mexico” immediately precedes the name and US address of the U.S. manufacturer, printed in a font of identical size, is acceptable for purposes of 19 U.S.C. 1304 and 19 CFR 134.46.

A copy of this ruling letter should be attached to the entry documents filed at the time the goods are 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

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