MAR-05 RR:TC:SM 559938 KKV
Ms. Rose Althoff
Midwest of Cannon Falls
32057 64th Avenue
P.O. Box 20
Cannon Falls, MN 55009-0020
RE: Country of origin marking of figurines; misleading; 19
CFR 134.46, 19 CFR 134.47
Dear Ms. Althoff:
This is in response to your letter dated June 7, 1996,
which was forwarded to our office on July 2, 1996, which
requests reconsideration of New York Ruling Letter (NYRL)
A82648, dated May 9, 1996, concerning the country of origin
marking requirements for imported figurines which have been
designed in the United States. We note, however, that your
current inquiry focuses upon facts and proposed marking
which differ somewhat from your initial request to our New
York office. Therefore, your request will be treated as a
separate request for a ruling under the purview of 19 CFR
Part 177 and this ruling shall not be construed a
reconsideration NYRL A82648. Two samples have been
submitted for our examination.
FACTS:
We are informed that Midwest of Cannon Falls imports
two decorative cartoon character figurine lines from Hong
Kong. The figurines, Daffy Duck Nutcracker (item 17998-7)
and Marvin the Martian Nutcracker (item 17996-3 are made in
China of polyresin and wood. The polyresin material
consists of calcium carbonate (derived from limestone)
agglomerated with plastic resin. The figurines are
classified under subheading 6810.99.0000, HTSUS, which
provides for articles of...artificial stone, whether or not
reinforced: other articles: other and are dutiable at a rate
of 2.9% ad valorem.
Two samples of the Marvin the Martian figurine, have
been submitted for our consideration. Both sample figurines
are permanently affixed to a base of unknown composition.
The first sample is marked at the back of the base: "TM &
1996 WARNER BROS. BY MIDWEST OF CANNON FALLS." The second
sample is marked in a similar fashion, but has a sticker
with the country of origin which obscures the word "by" so
that the back of the base reads "TM & 1996 WARNER BROS.
MADE IN CHINA MIDWEST OF CANNON FALLS." The second
sample is also marked with a hang tag which, in addition to
copyright and trademark information, reads "Reproduced by
Midwest of Cannon Falls" in combination italicized/boldface
type and the phrase "MADE IN CHINA" in capital letters in a
type larger than the surrounding information. You propose
to mark the back of the base "TM & 1996 WARNER BROS.
MIDWEST OF CANNON FALLS" and place the country of origin
information on the bottom of the base of the figurine.
ISSUE:
Whether the proposed country of origin marking
satisfies the requirements of 19 U.S.C. 1304 and 19 CFR Part
134.
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 United States shall be
marked in a conspicuous place as legibly, indelibly, and
permanently as the nature of the article (or container) will
permit, in such a manner as to indicate to the ultimate
purchaser in the United States the English name of the
country of origin of the article. By enacting 19 U.S.C.
1304, 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 regulations (19 CFR Part 134),
implements the country of origin marking requirements and
exceptions of 19 U.S.C. 1304. Section 134.41, Customs
Regulations (19 CFR 134.41), the country of origin marking
is considered to be conspicuous if the ultimate purchaser in
the United States is able to find the marking easily and
read it without strain. Of concern here are the
requirements of two related provisions of the marking
regulations, section 134.46, Customs regulations (19 CFR
134.46) and section 134.47, Customs regulations (19 CFR
134.47).
Specifically, 19 CFR 134.46 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, 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 (See Headquarters Ruling Letter (HRL) 708994,
dated April 24, 1978). The more restrictive requirements of
19 CFR 134.46 are designed to alleviate the possibility of
any misleading of an ultimate purchaser with regard to the
country of origin of an imported article, if such article or
its container includes language which may suggest a U.S.
origin (or other foreign locality not the correct country of
origin). However, Customs has held that, under certain
conditions, geographic names appearing in connection with
imported articles do not necessarily trigger the
requirements of 19 CFR 134.46 if the context in which the
names are used is such that confusion by the ultimate
purchaser regarding country of origin is unlikely (See
Customs Service Decision (C.S.D.) 90-31, dated December 20,
1989).
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 the words "Made in,"
"Product of," or other similar words, in close proximity or
in some other conspicuous location (emphasis added). In
such circumstance, no comparable size requirement exists.
The purpose of both provisions is the same, namely to
prevent the ultimate purchaser from being misled or deceived
when the name of a country or place other than the country
of origin appears on an imported article or its container.
The critical difference between the two provisions is that
19 CFR 134.46 requires that the name of the actual country
of origin appear "in close proximity" to the non-origin
reference and in lettering of at least comparable size. By
contrast, 19 CFR 134.47 is less stringent, providing that
the name of the country of origin must appear in close
proximity to the non-origin reference or "in some other
conspicuous location". In other words, the latter provision
triggers only a general standard of conspicuousness. In
either case, the name of the country of origin must be
preceded by "Made in", "Product of", or other similar words.
With regard to the matter currently under consideration, we
note that Cannon Falls is the name of a city in Minnesota.
In the absence of evidence indicating that Midwest of Cannon
Falls constitutes a trade name, trademark or souvenir mark,
the less stringent requirements of 19 CFR 134.47 are
inapplicable, and the proposed marking must adhere to the
stricter requirements of 19 CFR 134.46.
In C.S.D. 90-31, dated December 20, 1989, Customs held
that, under certain conditions, geographic names appearing
in connection with imported articles do not necessarily
trigger the requirements of 19 CFR 134.46 if the context in
which the names are used is such that confusion by the
ultimate purchaser regarding country of origin is unlikely.
In that decision, Customs cited to several rulings including
HQ 732329 (July 12, 1989), (address on a warranty card did
not pose a risk of confusion to ultimate purchasers) and HQ
732816 (November 24, 1989), (address printed on display
ticket was provided to assist customer in the event of
questions concerning guarantees) where it was decided that
the context in which the names and addresses were used was
such that confusion regarding country of origin was not
conceivable.
Here, however, the non-origin geographical reference on
the subject figurines is not accompanied by warranty
information or as a point of reference for customer service
concerns, making the possibility of confusion regarding the
origin of the product more likely, triggering the
applicability of the special marking requirements of 19 CFR
134.46. The likelihood of confusion is further compounded
where the phrase "Midwest of Cannon Falls" is preceded by
the word "By," unaccompanied by any other verb, such as
"designed," thus creating the implication that the article
was manufactured by Midwest of Cannon Falls. Therefore, if,
as you propose, the phrase "Midwest of Cannon Falls" appears
on the back of the base of the figurine (or on its
container), it must be accompanied by the country of origin,
China, preceded by "Made in," "Product of" or words of
similar meaning printed in letters of at least comparable
size. With regard to the location of such marking, in
Headquarters Ruling Letter (HRL) 558734, dated November 4,
1994, Customs held that the marking "Hand Painted in USA,
Made in Uruguay" located on the bottom of imported plaster
figurines satisfies the requirements of 19 CFR 134.46.
Therefore, the subject figurines may be marked on the
bottom of the figurine and/or at the back of the base with
the phrase "TM & WARNER BROS. MADE IN CHINA BY MIDWEST
OF CANNON FALLS" In the alternative, the markings,
"DESIGNED BY MIDWEST OF CANNON FALLS, MADE IN CHINA" or
"MADE IN CHINA FOR MIDWEST OF CANNON FALLS" would also meet
the requirements of 19 U.S.C. 1304 and 19 CFR 134.46.
HOLDING:
Because the reference to "Midwest of Cannon Falls" is
likely to create confusion regarding the origin of figurines
made in China, the special marking requirements of 19 CFR
134.46 are triggered. Therefore, wherever the reference to
"Midwest of Cannon Falls" appears, it must be accompanied by
the country of origin, China, preceded by "Made in,"
"Product of," or words of similar meaning.
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
Tariff Classification and
Appeals Division