MAR-2-05 CO:R:C:S 558845 BLS

Stephen M. Zelman, Esq.
Stephen M. Zelman & Associates
845 Third Avenue
New York, New York 10022

RE: Country of origin marking of watches; trademark; Additional U.S. Note 4, Chapter 91, HTSUS; 19 CFR 134.46 and 134.47

Dear Zelman:

This is in response to your letter dated October 13, 1994, on behalf of Jorst International, requesting our opinion as to whether certain country of origin marking of ladies' and men's wristwatches satisfy the country of origin marking requirements set forth under Part 134 of the Customs Regulations and Additional U.S. Note 4 to Chapter 91, ("Additional Note 4"), Harmonized Tariff Schedules of the United States (HTSUS). We understand that entries have been filed with Customs at JFK Airport since the original ruling request was made and, accordingly, we are providing a copy of this ruling to that office.

FACTS:

You state that the movement of each watch is marked on one of its bridges or top plates to show the name of the country of manufacture, i.e., Japan, and the name of the manufacturer. The case is marked on the outside of the back cover to show (1) the name of the purchaser, Jorst International, (2) the country of origin of the case, "Denmark case SS", and (3) the country of manufacture of the movement, "Japan Quartz Movement". The watch band is marked with its country of origin, "Denmark", and the face of the watch, as well as the back of the case, is also marked to show the company's trademark, "SKAGEN DENMARK". We understand that the trademark for this mark is pending with the U.S. Office of Patents and Trademarks. A copy of a "Filing Receipt For Trademark Application", dated October 1, 1993, has been submitted with the request. The watch face contains no

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other markings. You also note that the movement has no jewels.

ISSUE:

What are the country of origin marking requirements for the subject watches?

LAW AND ANALYSIS:

Section 304 of the 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 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. 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 Headquarters Ruling Letter (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.

Section 134.46, Customs Regulations (19 CFR 134.46), requires that if the name of any city or locality in the U.S. 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

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misleading or deceiving the ultimate purchaser as to the actual origin of the imported good.

However, where a U.S. locality, the words "United States", or a similar designation appears as part of a trademark or trade name, the article shall be 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. See 19 CFR 134.47. While this regulation pertains to a trademark or trade name containing the name of a location in the U.S., Customs has held that "[t]he rationale for granting a special exemption for trademarks and trade names containing the name of a domestic locality applies at least as strongly to trademarks bearing the name of a foreign locality. Accordingly, it is our opinion that the intent of 134.47 was to include foreign trademark designations as well as domestic locales." (See HRL 731524 dated December 18, 1989, quoting HRL 710682 dated June 26, 1979.)

We have previously held that evidence of an application for a trademark registration will be sufficient to invoke the less restrictive provisions of 19 CFR 134.47. See HRLs 734066 dated July 15, 1991, and 734455 dated July 1, 1992. However, if for some reason the application is denied, then the requirements of 19 CFR 134.46 will come into play. Since the evidence establishes that an application for registration of the trademark "Skagen Denmark" has been filed with the U.S. Office of Patents and Trademarks, 19 CFR 134.47 is applicable. Therefore, country of origin marking on the face of the dial is not required, as long as appropriate country of origin marking is placed on some other conspicuous location.

As noted, supra, 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. Since we have found that the word "Movement", or an abbreviation thereof, is the equivalent of "Made In" (See HRL 735251 dated October 7, 1993), the term "Japan Quartz Movement", placed on the outside cover of the watch case, is an acceptable country of origin marking, assuming all other requirements of 19 U.S.C. 1304 are satisfied. Section 134.43(b), Customs Regulations (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 Note 4. This note requires that any watch movement or case provided for in the chapter, whether imported

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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 exemptions to the special marking requirements for watches. See HRL 726711 dated October 22, 1984.

Section (a) of Additional 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 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), Customs Regulations (19 CFR 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 Note 4, 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 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.

Based on the description of the marking of the movement and case, and a review of the provided illustrations, we find that the marking of these components will satisfy the requirements of Additional Note 4, provided that they are conspicuously and indelibly marked in the manner provided under the note. We also find that the word "Denmark", on the band, is an acceptable marking to indicate the country of origin of this component, provided the marking is conspicuous, legible, and permanent.

HOLDING:

Based on the information submitted, the marking "Japan Quartz Movement", placed on the outside cover of the watch case, is an acceptable country of origin marking, assuming all other requirements of 19 U.S.C. 1304 are satisfied. Marking the bridge or top plate of the movement to show the country of manufacture of this component, Japan, and name of the manufacturer, as mandated under the special marking requirements of Additional Note 4, is acceptable provided the marking is indelible and

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conspicuous as described under the note. Marking the case on the outside of the back cover to show the country of origin, "Denmark case SS", and the name of the purchaser, "Jorst International", is also in compliance with Additional Note 4, as long as the marking is indelible and conspicuous. The word "Denmark", on the band, is acceptable country of origin marking, assuming that it otherwise satisfies the requirements of 19 U.S.C. 1304. The term "Skagen Denmark", located on the face of the watch, is considered a trademark for purposes of 19 CFR 134.47. Therefore, unless the application for a trademark registration filed with the U.S. Office of Patents and Trademarks is denied, country of origin marking on the face of the watch is not required, and the marking "Japan Quartz Movement" on the outside cover of the case satisfies the requirements of 19 CFR 134.47. We note that there is no requirement that the mark "Skagen Denmark" be recorded with Customs, assuming that it will eventually be registered. However, should the application for registration of the mark be denied, it is incumbent upon Jorst International or its duly authorized representative to provide notice to Customs of such denial.

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,

John Durant, Director
Commercial Rulings Division