United States International Trade Commision Rulings And Harmonized Tariff Schedule

faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers

faqs.org > Rulings and Tariffs Home > Rulings By Number > 2006 NY Rulings > NY M82993 - NY M83037 > NY M83021

Previous Ruling Next Ruling
NY M83021

---

May 5, 2006

MAR-2 RR:NC:2:224 M83021

CATEGORY: MARKING

Mr. Chris Mather
Spector Image
3400 Thimens Blvd.
St. Lauren Qc.
H4R1V6

RE: THE COUNTRY OF ORIGIN MARKING OF PENS

Dear Mr. Mather:

This is in response to your letter dated April 21, 2006, requesting a ruling on whether the proposed marking "China" is an acceptable country of origin marking for imported pens. Five marked samples were submitted with your letter for review.

The five samples are ballpoint pens that will be printed with advertising logos or slogans after importation, repackaged and sold in the U.S. They include item #’s: G149, G171, G151, G166, and G174. Item #G149 (Blue) is marked “China” on the metal piece that connects the clip to the pen. Item #G171 (Green) is marked “China” on the black pad on the pen. Item G151 (Orange) is marked “China” on a circular metal piece on the pen between the barrel and the black rubber pad. Item #G166 (Blue) is marked “China” on the metal clicker on the opposite end of the pen point. Item G174 (Silver) is marked “China” in black on the barrel and it is also marked on the clicker portion of the pen. The marking on each of the five pens (except for one of the markings on item G174), as described above, is “blind”, that is, in the same color as the background.

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.

As provided in section 134.41(b), Customs Regulations (19 CFR §134.41(b)), the country of origin marking is considered conspicuous if the ultimate purchaser in the U.S. is able to find the marking easily and read it without strain.

19 C.F.R. §134.1 (d) defines the ultimate purchaser as generally the last person in the U.S., who will receive the article in the form in which it was imported. 19 C.F.R. §134.1 (d)(2) also indicates that if the imported article is distributed as a gift the recipient is the “ultimate purchaser.” Consequently, although the pens may be given away by businesses as promotions or advertisements, under the Customs regulations the recipient of the pens, not the importer, would be considered the ultimate purchaser. Therefore, the pens must be marked permanently, legibly, and conspicuously, to indicate the country of origin of the article to the recipient. See Pabrini, Inc. v. United States, 630 F. Supp 360 (C.I.T., 1986).

In HQ 733940, of October 24, 1991, Customs Headquarters set certain factors that need to be considered in determining if the country of origin marking on an article, such as a pen, is conspicuous within the meaning of 19 C.F.R. § 134.41 and 19 U.S.C. §1304. Among the factors that should be considered are the size of the marking, the location of the marking, whether the marking stands out, and the legibility of the marking. The size of the marking should be large enough so that the ultimate purchaser can easily see the marking without strain. The location of the marking should be in a place on the pen where the ultimate purchaser could expect to find the marking or easily notice it from a casual inspection. Whether the marking stands out is dependent on where it appears in relationship to other print on the article and whether it is in contrasting letters to the background. The legibility of the marking concerns the clarity of the letters and whether the ultimate purchaser could read the letters of the marking without strain. No single factor should be considered conclusive by itself in the determination. Instead, it is the combination of these factors which determines whether the marking is acceptable. In some cases, a marking may be unacceptable even when it is a large size because the letters are too hard to read or it is in a location where it would not be easily noticed. In other cases, even if the marking is small, the use of contrasting colors, which make the letters particularly stand out, could compensate to make the marking acceptable.

As a general rule, “blind” marking is unacceptable. The marking of the five ballpoint pens is neither legible nor conspicuous. Marking of G151 on a circular metal piece between the barrel and the rubber pad is considered to conceal the country of origin; marking of G166 on a metal clicker on the opposite end from the pen point is also considered to conceal the country of origin. Items G149, and G171 have a country of origin marking on a location somewhere on the barrel, however the fact that each of the markings is “blind”, and only 1/16th of an inch, renders each marking unacceptable. Marking on item 174 is in two places: the barrel and the clicker. The marking on the barrel is not “blind”, however its size (1/16th of an inch) is not acceptable. The marking on the clicker portion of item 174 conceals the marking because of the location and is also “blind” marking. The marking for the country of origin on each of the five pens is too small to be noticeable (1/16th of an inch).

We would recommend since the barrels of the pens are imprinted with advertising, that they be imprinted with the country of origin at the same time.

The proposed marking of the five imported pens, items G149, G171, G151, G166, and G174, as 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 pens.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 CFR Part 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 Tom McKenna at 646-733-3025.

Sincerely,

Robert B. Swierupski
Director,

Previous Ruling Next Ruling