HQ 967987 - Reconsideration of NY L86355, Country of Origin Marking of Women’s Wallets with an included Brochure that Contains the Words “American Classic”; “all-American” and “American style”; 19 CFR 134.46 - United States International Trade Commision Rulings

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HQ 967987

July 27, 2006

MAR-RR:CTF:TCM 967987 RSD

CATEGORY: MARKING

John B. Pellegrini, Esq.
McGuire Woods LLP
1345 Avenue of the Americas
New York, New York 10105

RE: Reconsideration of NY L86355, Country of Origin Marking of Women’s Wallets with an included Brochure that Contains the Words “American Classic”; “all-American” and “American style”; 19 CFR 134.46

Dear Mr. Pellegrini:

This is in response to your letter of November 9, 2005, on behalf of Coach, Inc. (Coach) requesting reconsideration of NY L86355, dated August 10, 2005, concerning the country of origin marking requirements of wallets. You submitted a wallet and a brochure for our examination. The wallet will be returned to you in a separate cover. On March 29, 2006, a meeting was held at our office with you and members of my staff to discuss this matter.

FACTS:

According to your letter, Coach imports a variety of products including handbags, wallets, luggage, and business accessories. Many of these products are sold with an informational brochure in the form of a small booklet that provides a brief history of the Coach Company and its products. The first written page of the brochure contains three phrases in which the word “American” appears. These phrases are “An American Classic”, “all-American” and “American style”. In addition, the inside back cover of the brochure provides the addresses, phone numbers, etc. of the Coach company’s corporate offices and its consumer service department. NY L86355 also states that the accompanying brochure contained a reference to the geographical location “Manhattan”. However, the brochure that you submitted with your request for reconsideration does not mention “Manhattan”. There are also no references to the country of origin of the accompanying products anywhere in the brochure.

In NY L86355, Customs and Border Protection (CBP) considered a lady’s leather wallet, style number 6860. The wallet measured approximately 5" x 4.25" when closed. The exterior cover was made of top grain calfskin leather. The billfold portion had a center divider that created two sections for various denominations of currency. One exterior side had a pouch with a snap flap similar to a coin purse. The interior bottom left side of the wallet was embossed in metallic print with the trade name "Coach" in an embossed frame-like design.

In the ruling, we stated that the submitted sample contained a fabric label inserted within the rear-most billfold which was temporarily adhered to the stitched seam by tape. The fabric label was of a dark colored woven fabric that was embroidered with a contrasting color yarn, which read "Made in Italy". The ruling also stated that officials from Coach indicated in a telephone conversation that the submitted sample was only an example of one product. It was further stated that the final product would have a label that reads "Made in China."

The sample that you submitted with this request for reconsideration is a ladies wallet, style number 6555. It is apparently a little different from the ladies wallet that was the subject of NY L86355. The country of origin marking is located on a fabric label that is stitched inside in a corner of the billfold section of the wallet where paper bills will be kept. The label is black and states in contrasting white lettering “MADE IN CHINA”. We note that the label is not visible unless the wallet is opened and the billfold section is pulled apart so that it can be examined.

In NY L86355, CBP indicated that it was very likely that the ultimate purchaser would read the brochure during an examination of the wallet at the point of sale. Therefore, we determined that the use of domestic geographic locations could mislead or deceive an ultimate purchaser as to the actual origin of the article. Thus, CBP found that the non-origin geographical references in the brochure triggered the special marking requirements of 19 CFR 134.46. As such, CBP also held that either the non-origin geographical locations, as described above, should be removed from the brochure or the country of origin of the article should be placed on the same page in a comparable size lettering preceded by "Made in" or "Handcrafted in" or words of similar meaning.

ISSUE:

Do the phrases that contain the word “American” which appear in a brochure that accompanies the ladies wallet or other similar type products trigger the special marking requirements of 19 CFR 134.46?

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. 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).

Part 134, Customs and Border Protection (CBP) Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. With regard to the proposed country of origin marking on the wallet you submitted, we note that the special marking requirements of 19 CFR 134.46 need to be considered. This section 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 may mislead or confuse the ultimate purchaser as to the 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. CBP has ruled that in order to satisfy the “close proximity” requirement, the country of origin marking must appear on the same sides(s) or surface(s) in which the name of the locality other than the country of origin appears. See HQ 708994, dated April 24, 1978.

The main intent of 19 CFR 134.46 is to avoid confusing, deceptive or misleading impressions regarding the country of origin of an imported product. Therefore, we believe that the brochure must be taken in context and that we must consider the totality of circumstances that surrounds the use of the phrase “American Classic” and the other phrases containing “American” to see if they are potentially misleading or confusing to the ultimate purchaser in determining the country of origin of the article.

In HQ 562070, dated June 20, 2001, CBP considered whether the phrase "American Original" appearing on a hangtag of an imported men’s garment would trigger the special marking requirements of 19 CFR 134.46. We concluded that phrase might mislead or deceive an ultimate purchaser as to the origin of the imported garment. Therefore, we ruled that the special marking requirements of 19 CFR 134.46 were applicable to the hangtags attached to the men's garments. Accordingly, we held that the country of origin of the garments must appear on the inside of the hangtags attached to the men's garments preceded by “Made in”, “Product of” or similar words and in a comparable size to the phrase "American Original".

In the case under consideration, we believe that the use of the caption and the story line “American Classic” along with other phrases containing references to the word “American” in the brochure that comes with the products under consideration could result in a consumer getting a mistaken or a deceptive impression that the wallet and the other goods are American products. If the consumer, who in this case would be the ultimate purchaser, already has the impression that Coach products are American goods, he is probably going to be mistaken or misled regarding their true country of origin.

In claiming that the phrases in the brochure containing “American” should not invoke the special marking requirements of 19 CFR 134.46, you contend that consumers generally will not take the time to read the brochure when they are contemplating whether to purchase the article. Therefore, you maintain that they will not be misled by the use of the phrase “American Classic” appearing in the brochure. However, we do not agree with the proposition that consumers will not bother to read the brochure when they are deciding whether to purchase the product. We note that the brochure is not in a sealed container so consumers will be able to see the brochure prior to purchase of the product. Consequently, it is apparent that Coach includes the brochure with its products with the intent of promoting their sale. We believe that many consumers will at least glimpse at the brochure before they decide whether to make a purchase. Thus, even if they do not fully read all the text in the brochure, we believe that consumers are still likely to review the brochure before they purchase the product. In so doing, they are likely to see the headings or captions like “American Classic” as well as notice the other similar references to American in the brochure. From the context, it is also evident that Coach is including the information regarding the American background of their products in an attempt to link their products to America and American craftsmanship. Thus, in our judgment, these references to America can have the potential to confuse consumers regarding the actual country of origin of the wallet.

You also cite HQ 561371, dated May 20, 1999, as an indication that CBP had previously accepted the use of the phrase American Classic in a similar brochure that accompanied some of Coach’s products. HQ 561371 was a letter that CBP issued to one of Coach’s previous attorneys concerning a brochure put in an inside pocket of leather handbags. The brochure contained certain non-origin geographical references, which we indicated triggered the special marking requirements of 19 CFR 134.46. Specifically, the letter indicates that Coach neglected to remove its New York address from the back cover of the brochure. However, we also indicated that we would allow a period of time for Coach to use up its inventory of brochures before we would enforce the requirements of 19 CFR 134.46 on the brochures. We first note that we do not believe that HQ 561371 constitutes a binding ruling that was issued in accordance with 19 CFR Part 177. It was basically an information letter that was issued to Coach’s attorney for the limited purpose of allowing a waiver from complying with the requirements of 19 CFR 134.46 for a period of time because we decided that requiring fixing the brochure to be in compliance with the CBP regulations immediately would be economically prohibitive. Additionally, we note that the reason why we found that the brochures were not in compliance with 19 CFR 134.46 was that we believed “that it is very likely that an ultimate purchaser would see the brochure during an examination of the handbag at the point of sale.”

More relevant to the matter at hand is that in HQ 561371, we did not address the question of whether the use of the phrase “American Classic” inside the brochure would trigger the special marking requirements of 19 CFR 134.46. We reject your contention that because we did not address the subject in the letter, it must mean that we had already determined that the phrase “American Classic” appearing inside the brochure would not trigger the special marking requirements of 19 CFR 134.46. Absent a specific finding in HQ 561371 that states that the requirements of 19 CFR 134.46 will not apply to Coach’s brochure, we are unpersuaded that it supports the proposition that the use of phrases like “American Classic” in the brochures will not trigger the requirements of 19 CFR 134.46. Therefore, we conclude that HQ 561371 is not determinative with regard to whether the requirements of 19 CFR 134.46 should be invoked by the phrases “An American Classic”, “all-American” and “American style” appearing in the brochure that accompanies Coach’s products.

With respect to the U.S. addresses that appear on the back cover of the brochure, CBP has previously held that the requirements of 19 CFR 134.46 were not triggered by a U.S. address where it was immediately prefaced by a clear invitation for customers to contact the company with their questions about the product (i.e., “For any product related comments write to us at 14 Avenue, E. Bayonne, New Jersey 07002”). See 561701 dated October 2, 2001. However, while the U.S. addresses on the back cover by themselves would not trigger the special marking requirements of 19 CFR 134.46, based on the totality of the circumstances regarding the brochure, we believe that the phrase “American Classic” and the two other phrases “all-American” and “American style” appearing in the brochure could confuse the ultimate purchaser regarding the true country of origin of the imported articles. Thus, in order to avoid confusion, we find that the non-origin geographic references “American Classic” “all-American” and “American style” appearing in the brochure will trigger the special marking requirements of 19 CFR 134.46. Accordingly, if the words “America” or “American” appear in the brochures that accompany the wallet or similar articles, then the country of origin of the wallet must also appear in the brochure preceded by the words "Made in," "Product of," or other similar words, in comparable size and in close proximity to those phrases. The close proximity requirement of 19 CFR 134.46 would be satisfied if the country of origin marking appears in a conspicuous location in the brochure.

HOLDING:

NY L86355 is affirmed. The phrases “An American Classic”, “all-American” and “American style” that appear on the inside of a booklet brochure that accompanies Coach’s products triggers the special marking requirements of 19 CFR 134.46. Therefore, the country of origin of the imported product must appear in a comparable size in the brochure where the word “American” appears preceded by the words "Made in," "Product of," or other similar words. The company address references to a U.S location on the back page of the brochure by themselves will not trigger the special marking requirements of 19 CFR 134.46.

Sincerely,

Myles B. Harmon, Director

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