MAR-2-05 CO:R:C:S 558657 MLR
Mr. Chris Leung
CSC Time Corporation
482 Sunrise Highway
Rockville Centre, NY 11570
RE: Country of origin marking of "America Perry Ellis" watch;
wooden box; conspicuous location; trademark; Additional U.S.
Note 4, Chapter 91, HTSUS
Dear Mr. Leung:
This is in reference to your letter of July 25, 1994,
requesting a ruling regarding the country of origin marking
requirements of certain America Perry Ellis watches. A sample
was submitted with your request.
FACTS:
A Notice of Redelivery indicates that the sample is a men's
quartz analog watch, with a no (0) jewel watch movement in a base
metal watch case and a leather strap. The watch is printed with
the words "AMERICA PERRY ELLIS" on the face of the dial in
approximately 5 and 4 point types, and with "JAPAN" on the bottom
of the face of the dial in approximately 3 point type. The back
of the watch case is also engraved with "AMERICA PERRY ELLIS" and
"JAPAN MOVT." We are also informed that the inside of the watch
case is marked with "CSC Time Corp.", the purchaser. The leather
strap is embossed with the words "AMERICA PERRY ELLIS" and
"GENUINE LEATHER HONG KONG". Affixed to the metal strap fastener
is a sticker with the words "AMERICA PERRY ELLIS."
The watch is packaged in a 6 x 3 x 1 inch wood box. On the
top of the box are the words "AMERICA PERRY ELLIS." The bottom
of the box is marked with an unclear circular ink stamp that
indicates the box is from China. Inside the box, there is a
cardboard platform that holds the watch in place containing the
words "BOX HONG KONG" on the side. The box also contains a
pamphlet with "AMERICA PERRY ELLIS" on the front, which describes
the general instructions and ten-year limited warranty.
ISSUE:
What are the country of origin marking requirements for the
watch at issue.
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 imported into the U.S. shall be marked
in a conspicuous place as legibly, indelibly, and permanently as
the nature of the article 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. 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. Friedlaender & Co. Inc.,
27 CCPA 297, 302, C.A.D. 104 (1940).
Part 134, Customs Regulations (19 CFR Part 134), implements
the country of origin marking requirements and exceptions of
19 U.S.C. 1304. For country of origin marking purposes under 19
U.S.C. 1304, Customs considers the country of origin of a watch
to be the country of manufacture of the watch movement. See HRL
731546 dated October 27, 1988. The country of origin marking for
a watch may be placed on the face of the dial or on the outside
surface of the back cover of the watch case. As provided in
19 CFR 134.41(b), the country of origin marking is considered to
be conspicuous if the ultimate purchaser in the U.S. is able to
find the marking easily and read it without strain.
In this case, the U.S. reference "AMERICA PERRY ELLIS" on
the face of the dial and on the back cover triggers the
requirements of 19 CFR 134.46, which requires that if the name of
any city or locality in the U.S., or the name of any foreign
country or locality other than the country or locality in which
the article was manufactured or produced, appears on an imported
article or its container, 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. The purpose of this section is to prevent the
possibility of misleading or deceiving the ultimate purchaser as
to the actual origin of the imported good. However, the close
proximity requirement, which has been interpreted to mean the
same surface, is not necessarily applicable where a location
other than the country of origin appears as part of a trademark
or trade name; rather, the country of origin of the article may
be placed in some other conspicuous location. 19 CFR 134.47.
For the purposes of this ruling we are assuming that the
watch movement is manufactured in Japan. Consequently, in order
to be conspicuous, the face of the dial or the outside surface of
the back cover of the watch case must indicate the country of
origin of the watch as Japan. In HRL 735251 dated October 7,
1993, Customs indicated that in the case of watches, the word
"Movement" or an abbreviation thereof would be the equivalent of
"Made In." Furthermore, documentation has been submitted
indicating that "America Perry Ellis" is a trademark registered
with the United States Patent and Trademark office. We are also
informed that goods bearing "AMERICA PERRY ELLIS" may be
manufactured in Japan. Consequently, we find that the marking
"JAPAN" on the face of the dial with "AMERICA PERRY ELLIS", and
the marking "JAPAN MOVT" on the back cover of the watch with
"AMERICA PERRY ELLIS" is conspicuous and satisfies the
requirements of 19 U.S.C. 1304.
In addition, 19 CFR 134.43(b), in conjunction with 19 CFR
11.9, provides that watches must be marked in accordance with the
special marking requirements set forth in Additional U.S. Note 4,
Chapter 91, Harmonized Tariff Schedule of the United States
(HTSUS) (hereinafter "Additional U.S. Note 4"). This note
requires that any watch movement or case provided for in the
chapter, whether imported separately or attached to an article
provided for in the chapter, shall not be permitted to be entered
unless conspicuously and indelibly marked by cutting, die-
sinking, engraving, stamping or mold-marking (either indented or
raised), as specified in the provisions of this note. This
language is mandatory. Customs has no authority to grant
exceptions to the special marking requirements for watches. See
HRL 726711 dated October 22, 1984.
Section (a) of Additional U.S. Note 4 requires that watch
movements be marked on one or more of the bridges or top plates
to show: (1) the name of the country of manufacture; (2) the
name of the manufacturer or purchaser; and (3) in words, the
number of jewels, if any, serving a mechanical purpose as
frictional bearings. Section (c) of Additional U.S. Note 4
requires that watch cases shall be marked on the inside or
outside of the back cover to show: (1) the name of the country
of manufacture; and (2) the name of the manufacturer or
purchaser. Section 11.9(b), provides that the name of the
manufacturer or purchaser which must appear on articles provided
for in Chapter 91, HTSUS, and specified in Additional U.S. Note
4, Chapter 91, may be either the actual name of the manufacturer
or purchaser of a duly registered trade name under which such
manufacturer or purchaser carries on his business. A trademark
shall not be accepted as meeting any such special marking
requirement unless it includes the full name of the manufacturer
or purchaser. The term "purchaser" as used in this paragraph
means the purchaser in the U.S. by whom or for whose account the
articles are imported.
As indicated above, "America Perry Ellis" is a duly
registered trademark. However, CSC Time Corp. is the purchaser
of the watch movement and watch case. Accordingly, "CSC TIME
CORP" may be used for the purpose of marking the watch movement
and case with their country of origin. HRL 718311 dated January
26, 1982. However, since we are unable to remove the back cover
of the watch, we are unable to determine whether the special
marking requirements set forth in Additional U.S. Note 4 have
been satisfied. Please note that if the bridge or top plate of
the watch movement is marked "JAPAN", "CSC TIME CORP." (or with
the name of the manufacturer), and "no (0) jewel", the special
requirements of Additional U.S. Note 4(a)(i), (ii), and (iii),
will be satified. Furthermore, in regard to the watch case,
Additional U.S. Note 4(c)(ii) will be satisfied, if, in fact, the
marking of "CSC TIME CORP." is on the inside back of the watch.
The marking "JAPAN MOVT" does not satisfy the country of origin
marking of the watch case because it refers to the watch
movement. Therefore, only if the inside back of the watch is
presently marked with the country of origin of the watch case,
will Additional U.S. Note 4(c)(i) be satisfied.
In regard to watch straps, Customs has previously ruled that
they must be marked with their own country of origin. HRL 731546
dated October 27, 1988. For purposes of this ruling, we are
assuming that the country of origin of the watch strap is Hong
Kong. We find that the embossing of the leather strap with
"GENUINE LEATHER HONG KONG" is sufficiently legible, conspicous,
and permanent to satisfy the requirements of 19 U.S.C. 1304.
In regard to the packaging of the watch in a wooden box, 19
CFR 134.23 provides that containers or holders designed for or
capable of reuse after the contents have been consumed, whether
imported full or empty, must be individually marked with the
country of their own origin with a marking such as, "Container
Made in ...". In this case, it is our opinion that the wooden
box must be individually marked to indicate its own country of
origin because it is capable of reuse. See HRL 734691 dated
January 12, 1994 (jewelry boxes of substantial construction which
served a protective function for their contents, and which were
not ordinarily discarded by the consumer, were separate articles
of commerce and had to be individually marked with their own
country of origin).
Furthermore, the sample wooden box containing the watch has
the U.S. reference "AMERICA PERRY ELLIS" on the top. As stated
above, because "AMERICA PERRY ELLIS" is a duly registered
trademark, the country of origin of the box must be placed in
close proximity to the U.S. reference or may be placed in some
other conspicuous location. 19 CFR 134.47. We find that the
circular ink stamp on the bottom of the wooden box is in a
conspicous location to indicate the country of origin of the box;
however, it is not legible enough and should be restamped.
In addition, we believe that watches are items which the
ultimate purchaser will want to inspect prior to purchase.
Therefore, since the wooden box can be readily opened, there is
no requirement that the box be marked to indicate the country of
origin of the watch since the country of origin marking on the
watch is conspicuous enough to notify the ultimate purchsaer of
the country of origin of the watch.
Lastly, in regard to the cardboard platform, the marking on
the side "BOX HONG KONG" should be removed. First, it is unclear
whether this marking refers to the wooden box or the cardboard
itself. Second, since the wooden box will be opened by the
ultimate purchaser to examine the watch and its country of
origin, the marking on the cardboard is not necessary. See 19
CFR 134.24(d)(3). The same rationale is applicable to the
enclosed pamphlet which, although it references "AMERICA PERRY
ELLIS", is not required to be marked.
HOLDING:
On the basis of the sample submitted and assuming the watch
movement is manufactured in Japan, either the marking of "JAPAN"
on the face of the dial or the marking "JAPAN MOVT" on the
outside back cover satisfies the requirements of 19 U.S.C. 1304.
In regard to the special marking requirements, if the bridge or
top plate of the watch movement is marked "JAPAN", "CSC TIME
CORP." (or with the name of the manufacturer), and "no (0)
jewel", Additional U.S. Note 4(a)(i), (ii), and (iii), will be
satisfied. Furthermore, in regard to the watch case, none of the
special marking appears on the outside of the back cover.
Therefore, only if the marking "CSC TIME CORP." appears on the
inside back of the watch will the requirement of Additional U.S.
Note 4(c)(ii) be satisfied. Also, if the inside back of the
watch is marked with the country of origin of the watch case,
Additional U.S. Note 4(c)(i) will be satisfied.
We also find that the embossing of the watch strap with
"GENUINE LEATHER HONG KONG" satisfies the requirements of 19
U.S.C. 1304. The marking of the wooden box "BOX MADE IN CHINA"
on the bottom with a circular ink stamp will be sufficient if it
is legible. The cardboard platform and pamphlet are not required
to be marked.
Sincerely,
John Durant, Director