MAR-2-05 CO:R:C:S 558741 MLR
Natouchka P. Rampy, Esq.
Sharretts, Paley, Carter & Blauvelt, P.C.
67 Broad Street
New York, New York 10004
RE: Country of origin marking of shorts; trademark application
pending; Kalifornia; 19 CFR 134.46; design of garment
Dear Ms. Rampy:
This is in reference to your letter of September 2, 1994,
requesting a ruling on behalf of Speed Control Design, Inc.
("Speed"), regarding the country of origin marking of shorts. A
sample was submitted with your request.
FACTS:
The garment at issue is a pair of shorts. The sample
features numerous references to the word "Kalifornia" and the
letter "K", both in script lettering. Both the letter "K"
itself, and in the word "Kalifornia", resemble a slash (/) with a
"C" (i.e., /C).
Over the right frontal pocket is a fabric patch with the
"K", along with a crown and laurels. The "K" is also etched into
a metal button located at the frontal center of the waistband and
on rivets around the pockets. The "K" is also stitched on a
square fabric label on the right rear pocket.
The "Kalifornia" mark appears on a leather label located at
the rear right corner of the waistband, and is stitched on a
small fabric label located below the leather label. A sticker
with the "Kalifornia" mark and the phrase, "Designing in Jeans
Fabric For Spring 1995" is affixed to the lower frontal left leg
of the shorts. A cardboard hangtag with the "Kalifornia" mark is
looped around a frontal belt loop by means of a string. A second
cardboard tag with the "Kalifornia" design is stitched to the
frontal left waistband. A fabric label with the "Kalifornia"
design is sewn onto the center of the inner rear waistband.
Underneath this label, at the center of the bottom hem of the
inner waistband, is another fabric label which lists the
garment's fiber content, country of origin (Made in Hong Kong)
and the RN number.
It is stated that Speed has applied to the U.S. Patent and
Trademark Office for registration of a trademark, "Kalifornia."
The application for the trademark is still pending.
ISSUE:
Whether the use of the word "Kalifornia" and letter "K" on
imported shorts trigger the special marking requirements of
section 134.46, Customs Regulations (19 CFR 134.46).
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. Customs has recognized that the presence of a
geographic location other than the country in which the article
was produced on an imported article or its container may mislead
the ultimate purchaser as to the true country of origin.
Therefore, in cases where the name of a location 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, 19 CFR
134.46 provides that 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. 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, 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 "Made in", "Product of", or other
similar words, in close proximity or in some other conspicuous
location. In other words, if the question concerns a trade name
or trademark, the country of origin marking needs only to meet
the general standard of conspicuousness.
First, it is claimed that if the words which appear on the
article resemble a locality, but the letters of such word are
arranged differently, then 19 CFR 134.46 does not apply. In this
case, the word "Kalifornia" is not the name of any locality in
the U.S.; however, the word closely resembles the word for the
State of California.
In Headquarters Ruling Letter (HRL) 733833 dated February
19, 1991, Customs determined that while the name "Britannia" on
jeans was suggestive of a country other than the country of
origin of the jeans, it was not considered the long form or short
form name of that country, and, therefore, did not trigger the
special marking requirements. However, in this case, based on
the sample, we find that the design of the "K" in the word
"Kalifornia" could be regarded as a slash with a "C", thereby
denoting the word "California." Accordingly, we find the special
marking requirements to be applicable.
Secondly, however, it is claimed that if 19 CFR 134.46 is
applicable, the "Kalifornia" references on the shorts will not
confuse the ultimate purchaser as to the garment's country of
origin because it is evident that the word is being used as a
symbol or decoration, and is part of the garment's design,
especially since the "K" appears alone on the button at the
waistband, on the rivets surrounding the frontal pockets, and on
the fabric patch sewn above the right frontal pocket. Therefore,
since "Kalifornia" is clearly a design, the requirements of 19
CFR 134.46 are not triggered.
Customs has consistently held that in those case in which
reference to a place other than the country of origin is made on
an imported article, but such reference would not confuse the
ultimate purchaser, the requirements of 19 CFR 134.46 are not
triggered. In HRL 732412 dated August 29, 1989, Customs found
that the placement of the word "Kansas" on different parts of
imported jeans did not trigger the requirements of 19 CFR 134.46
because such marking was used as a symbol or decoration and would
not reasonably be construed as indicating the country of origin
of the article on which it appeared. Likewise, in C.S.D. 89-73
(February 2, 1989), Customs held that an imported man's pullover
shirt which prominently displayed the words "Christian Dior, 30
Avenue Montaigne, Paris 75008" across the back, did not invoke
the application of 19 CFR 134.46 because the true country of
origin of the article was indicated conspicuously on a label
inside the neckband. In HRL 733695 dated January 15, 1991,
women's trousers with metal rivets die-stamped with the words
"Bonjour Paris", and containing a fabric label sewn into the
waistband indicating the country of origin as Hong Kong, were not
subject to the requirements of 19 CFR 134.46 since the rivets
were decoration on the garment and an integral part of the
design.
However, in 732486 dated September 5, 1989, a label, crest
and hangtag containing the words "Riviera Line" were attached to
imported garments. The hangtag contained a picture of a cruise
ship in the center with two circles around the ship. Below the
ship in large bold lettering was the phrase "RIVIERA LINE". The
crest had a large script letter "R" in the center surrounded by a
crest with the word "RIVIERA" below the letter "R". It was
determined that while the crest was part of the design of the
garment, the hangtag with the phrase "Riviera Line" triggered the
special marking requirements of 19 CFR 134.46; therefore, the
hangtag had to contain the country of origin printed in a
conspicuous manner and placed in close proximity to the phrase
"Riviera Line". The rationale was that a locality other than the
country of origin is more likely to cause confusion when it
appears on a hangtag attached to a garment because a hangtag is
designed to attract the attention of the purchaser and generally
contains information about the article. As such, a reference on
the hangtag to a locality other than the country of origin of the
article to which it is attached is potentially misleading with
regard to the garment's country of origin.
In HRL 733281 dated August 3, 1990, garments contained the
words "Bonjour International" in large lettering on the front and
back and on a hangtag, along with the words "Milan", "Paris", and
"New York" in smaller lettering on both sides of the hangtag. It
was determined that since the hangtag contained several
references to localities other than the country of origin of the
garment to which it was attached and these references did not
appear as part of a trade name, trademark, or souvenir marking,
these references were potentially misleading; therefore, the
special marking requirements of 19 CFR 134.46 were applicable.
Accordingly, since the shorts submitted in this case contain
a hangtag, a cardboard label, and a sticker referencing
"Kalifornia", based on HRL 732486, the country of origin would be
required by 19 CFR 134.46 on the same side of these panels.
However, it is stated that Speed has applied for "Kalifornia" as
a trademark. 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 needed to
establish a trademark. However, if the application is denied,
the requirements of 19 CFR 134.46 will need to be satisfied. See
HRL 734455 dated July 1, 1992, and HRL 735180 dated May 17, 1994.
Therefore, in this case, although only an application has been
filed, Customs will allow the more lenient requirements of 19 CFR
134.47 to apply.
Accordingly, in HRL 733833, since "Britannia" was a
registered trademark, the requirements of 19 CFR 134.47 were
satisfied by a label on the inside of the waistband, which
Customs has determined to be a conspicuous location in which to
mark the country of origin on a pair of trousers. See T.D.
71-264(3) (August 18, 1971). Similarly, in this case, we find
the country of origin marking of the shorts which appears on a
sewn-in label at the center of the inner rear waistband to be a
conspicuous location pursuant to T.D. 71-264(3). The fabric
label also contains the fiber content and care instructions, and
the country of origin is in lettering of sufficient size and
boldness to be easily found and read. Consequently, we find the
country of origin marking on the shorts meets the requirements of
19 U.S.C. 1304 and 19 CFR Part 134.
HOLDING:
On the basis of the information and samples submitted, we
find that the country of origin marking of the imported shorts,
in the manner described above, satisfies the marking requirements
of 19 U.S.C. 1304 and 19 CFR Part 134.
Sincerely,
John Durant, Director
Commercial Rulings Division