HQ 563175 - Acceptability of proposed country of origin marking; firearms; 19 CFR 134.46; 19 CFR 134.47; non-origin geographical reference; confusing as to origin - United States International Trade Commision Rulings

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HQ 563175

March 31, 2005

MAR-05 RR:CR:SM 563175 KKV

CATEGORY: MARKING

Paul S. Anderson
Sonnenberg & Anderson
300 South Wacker Drive
Suite 1220
Chicago, IL 60606

RE: Acceptability of proposed country of origin marking; firearms; 19 CFR 134.46; 19 CFR 134.47; non-origin geographical reference; confusing as to origin

Dear Mr. Anderson:

This is in response to your letter dated December 30, 2004 (and supplemental submission dated February 14, 2004), on behalf of Springfield, Inc. which requests a binding ruling regarding the acceptability of the proposed country of origin marking on certain firearms. Photographs of the proposed marking and firearms have been submitted for our review.

FACTS:

The article at issue is a firearm described as an “XD pistol.” The marking on the top of the slide is contained within a round seal or emblem, and reads “Springfield Armory – HS Produkt Karlovoc.” Immediately below, in slightly larger type, is the word “Croatia.” Both the brand name seal and country of origin are permanently etched into the firearm.

The side of the pistol is marked with the phrase “Springfield Armory U.S.A”, in letters larger than those used on the markings on the top slide of the firearm. Below, in smaller letters, is the phrase “Springfield, Inc. – Geneseo, Illinois.” Both phrases are permanently etched into the firearm.

Springfield, Inc. proposes to mark the pistols “Made in Croatia” on the top of the slide, without any additional qualifying marking on the side of the firearm. Additionally, it indicates that it would also be willing to attach a hang-tag to the firearm.

ISSUE:

Whether the proposed country of origin marking located on the top slide of the pistol, accompanied by an additional hangtag, is acceptable under 19 U.S.C. 1304 and 19 CFR Part 134.

LAW AND ANALYSIS:

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 the English name of the country of origin of the article. Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304.

Section 134.1(d) defines the "ultimate purchaser" generally as the last person in the United States who will receive the article in the form in which it was imported. The marking must be conspicuous to the ultimate purchaser. Here, the ultimate purchaser is the person who buys the firearms at retail. The "country of origin" for marking purposes is defined by section 134.1(b), Customs Regulations (19 CFR 134.1(b)), to mean the country of manufacture, production, or growth of any article of foreign origin entering the U.S.

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 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. 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.

You assert that the less stringent requirements of section 134.47 are applicable, stating that Springfield, Inc. has a common law trademark in the phrase “Springfield Armory USA.” Although 19 CFR 134.47 applies when a locality reference appears as part of a trademark, Customs has accepted a filed application with the U.S. Patent and Trademark Office as sufficient evidence of a trademark for purposes of 19 CFR 134.47 since the regulation does not specify what evidence is necessary to establish a trademark. However if the application is denied, the requirements of 19 CFR 134.46 may be applicable. See HRL 734455 dated July 1, 1992, HRL 735180 dated May 17, 1994, and HRL 561060, dated November 3, 1998. Therefore, if an application for a trademark has been filed, Custom will allow the more lenient requirements of 19 CFR 134.47 to apply.

With regard to the subject marking, we note that while Springfield, Inc. currently holds a registered trademark for “Springfield Armory” it has not registered the phrase “Springfield Armory USA.” Nor has evidence been submitted which indicates that an application has been filed with the U.S. Patent and Trademark Office in connection with that phrase. The mere appearance of a non-origin geographic reference (such as the letters “U.S.A.”) together with a registered trademark is not sufficient to trigger the more lenient requirements of section 134.47. See, HRL 562437, dated September 13, 2002. See also, HRL 562878, dated December 30, 2004. We note that 19 CFR 134.47 states, in pertinent part, that it applies when “the name of a location in the United States or ‘United States’ or ‘America’ appear as part of a trademark.” (emphasis added). In this case, neither the letters “U.S.A.” nor the phrase “Geneseo, Illinois” appear as “part of a trademark.” Thus, 19 CFR 134.47 is inapplicable.

With respect to the application of 19 CFR 134.46, Customs has held that under certain conditions, geographic names appearing in connection with imported articles do not necessarily trigger the requirements of 19 CFR 134.46 if the context in which the names are used is such that confusion by the ultimate purchaser regarding country of origin is unlikely. For example, in HRL 732329, dated July 12, 1989, an address on a warranty card did not pose a risk of confusion to ultimate purchasers. In HRL 732816, dated November 24, 1989, an address printed on a display ticket was provided to assist customers in the event of questions concerning guarantees and it did not trigger the requirements of 19 CFR 134.46. In HRL 732412, dated August 29, 1989, Customs considered the country of origin marking of jeans with the word "Kansas" on a fabric label attached to the rear right pocket, "Kansas Jean" on rear pocket snaps, "Kansas" and "Kansas Jeans Navy Wear" printed on a leather label attached to the front right pocket, and a stylized "K" and the word "J. Kansas" decorating the front button. The country of origin was displayed on a fabric label sewn to the waistband. Noting that these non-origin references were a part of the design/decoration of the jeans and the country of origin marking was conspicuous in that it appeared in a usual place, in lettering sufficient to be easily found and read, Customs determined that the U.S. references did not trigger the marking requirements of section 134.46.

However, in this case the non-origin geographical references etched into the side of the pistol - “U.S.A.” and “Geneseo, Illinois” – do not appear as part of the design/decoration of the firearm. Moreover, the non-origin geographic references are not accompanied by warranty information or given as a point of reference for customer service concerns, making the possibility of confusion regarding the origin of the product more likely, triggering the applicability of the special marking requirements of 19 CFR 134.46. Therefore, the proposed manner of marking the top of the pistol slide “Made in Croatia” in small letters, with an additional hangtag, does not meet the special marking requirements of 19 CFR 134.46. Instead, the side of the pistol must be marked with the country of origin preceded by “Made in,” “Product of” or words of similar meaning, printed in letters of comparable size to the “U.S.A” and “Geneseo, Illinois” references. Inasmuch as the imported article is permanently marked with the non-origin geographic references, the country of origin should be displayed in a similar manner.

HOLDING:

On the basis of the information provided, where an imported pistol is conspicously and permanently marked with non-origin geographic references, which are unaccompanied by warranty information or given as a point of reference for customer service concerns, making the possibility of confusion regarding the origin of the firearm more likely, the special marking requirements of 19 CFR 134.46 are triggered. Therefore, the side of the pistol must be marked with the country of origin preceded by “Made in,” “Product of” or words of similar meaning, printed in letters of comparable size to the “U.S.A” and “Geneseo, Illinois” references. Inasmuch as the imported article is permanently marked with the non-origin geographic references, the country of origin should be displayed in a similar manner.

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
Commercial Rulings Division

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