MAR 05 RR:CR:SM 562481 KKV
James K. Kearney, Esq.
Jason P. Matechak, Esq.
Reed Smith, LLP
1301 K Street, N.W.
Suite 1100 – East Tower
Washington D.C. 20005-3373
Re: Country of origin marking requirements applicable to packages and cartons of cigarettes made in Indonesia; 19 CFR 134.47; 19 CFR 134.46
Dear Mr. Kearney and Mr. Matechak:
This is in response to your letter dated July 22, 2002, on behalf of UNICO Trading Pte, Ltd., which requests a binding ruling regarding the country of origin marking requirements applicable to packages and cartons of cigarettes made in Indonesia. Specifically, you ask whether the submitted samples are marked in a manner that complies with Customs requirements.
FACTS:
We are informed that NV Sumatra Tobacco Trading Company (“NV Sumatra”), an Indonesian corporation, is the manufacturer and trademark owner of United( brand cigarettes. NV Sumatra manufactures a number of types of cigarettes, including “Virginia Blend,” “Clove ” and “American Blend” cigarettes. This ruling concerns the “American Blend” type.
United® brand’s “American Blend” cigarettes are available in five different “tastes:” Regular, Lights, Ultra Lights, Menthol and Menthol Lights. Each taste version comes in two sizes: “King Size” cigarettes, which are eighty-four millimeters (84mm) long, and “100’s” which are 100 millimeters (100mm) long. Each taste and size version is available in “Hard Pack” and “Soft Pack” packaging. Samples of the individual packs and cartons for each of the twenty (20) product variations have been submitted for our examination. Printed on the front and back of each pack and carton, in contrasting black or red bold letters is the phrase, “AMERICAN BLEND.” In addition, printed on the side panel of each pack and carton, in much smaller letters of contrasting white or black letters, is the phrase, “MADE IN INDONESIA UNDER AUTHORITY OF FEDERAL TOBACCO INC., U.S.A.” Lastly, spanning the top of each of the soft packs is a paper tape printed with the phrase, “BLENDED WITH THE FINEST TOBACCOS FROM THE U.S.A.”
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 its 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. Under section 134.41(b), Customs regulations, the country of origin 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 134.36, 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, and those words or name may mislead or deceive the ultimate purchaser as to the actual country of origin of the article, 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).
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. 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 products under consideration, evidence has been submitted which indicates that NV Sumatra applied for and was issued a trademark for the phrase “United King Size American Blend” by the United States Patent and Trademark Office (Reg. No. 2,031,452, registered on January 21, 1997). Therefore, the samples printed with this phrase are subject to the less stringent requirements of 19 CFR 134.47, which is triggered when a non-origin locality reference appears as part of a trademark. However, in the absence of evidence indicating that “United 100’s American Blend” or “United American Blend” are similarly trademarked, or otherwise constitute a trade name or souvenir mark utilized by NV Sumatra, the products marked with these words must adhere to the stricter requirements of 19 CFR 134.46.
Examining the proposed packaging of the individual packs and cartons for the ten products pertaining to the king size (84mm) cigarettes, we note that all ten cartons are printed with the trademark phrase “UNITED KING SIZE AMERICAN BLEND” on the front and back side. Consequently, pursuant to 19 CFR 134.47, the country of origin must appear in close proximity or “in some other conspicuous location” preceded by words such as “Made in” or “Product of.” Printed on the side panel of all of the cartons is the marking, “MADE IN INDONESIA UNDER AUTHORITY OF FEDERAL TOBACCO, INC., U.S.A.” in contrasting ink, in the lower left corner. Although the font used to print the marking is smaller than the typeface of other surrounding printed words, the marking is separated from other product information in such a way that it may be easily located and read by a potential purchaser. Accordingly, we find that the samples of all ten cartons for the king size cigarettes satisfy the requirements for conspicuousness under 19 CFR 134.47.
The five individual soft packs for the king size cigarettes are printed in the same manner as the cartons, with the phrase “MADE IN INDONESIA UNDER AUTHORITY OF FEDERAL TOBACCO, INC., U.S.A.” printed on one side panel, in smaller contrasting ink. However, the soft packs also contain an additional feature: spanning the top of each of the soft packs is a paper tape printed with the phrase, “BLENDED WITH THE FINEST TOBACCOS FROM THE U.S.A.,” a locality reference separate from trademark, necessitating the consideration of 19 CFR 134.36
With regard to 19 CFR 134.46, in Customs Service Decision (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 HRL 732329, dated July 12, 1989, (address on a warranty card did not pose a risk of confusion to ultimate purchasers) and HRL 732816, dated 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 U.S. reference on the paper tape 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. Therefore, the requirements of 19 CFR 134.46 are triggered, and the country of origin statement (“Made in Indonesia”) must appear “in close proximity” to the U.S. reference and in lettering of at least comparable size. Because the tape is positioned so that the U.S. reference appears on the front and back panel, and the statement of origin is printed on the side panel, in much smaller typeface, the country or origin marking on the five individual sample soft packs containing king size (84mm) cigarettes is not acceptable for purposes of 19 CFR 134.46.
The five remaining samples pertaining to king size cigarettes – the individual hard packs – are not printed with the trademark “UNITED KING SIZE AMERICAN BLEND.” Rather, the front and back panels are printed with the brand name, “UNITED” and the words “AMERICAN BLEND.” The bottom panel is printed with the words “UNITED KING SIZE.” Because the U.S. reference does not appear as part of a trademark or trade name, the provisions of 19 CFR 134.47 are inapplicable to these packages.
Likewise, the provisions of 134.47 are inapplicable to the ten samples containing 100mm cigarettes, both soft packs and hard packs, as well as their cartons. The front and back panel of the individual hard packs are marked with the brand name, “UNITED” and the words “AMERICAN BLEND.” The size of the cigarettes, “100s” is printed along the edge of the right side of the pack, sidewise - oriented at an angle which is ninety (90) degrees from the rest of the printed information. The bottom panels of each hard pack are printed with the words, “UNITED 100s”.
The individual soft packs and all of the cartons for the 100 mm cigarettes are marked with the phrase, “UNITED 100s AMERICAN BLEND,” a phrase for which NV Sumatra owns no trademark. Additionally, as with the soft packs previously discussed, the soft packs containing 100mm cigarettes also have a paper tape which spans the top opening, which is printed with the phrase, “BLENDED WITH THE FINEST TOBACCOS FROM THE U.S.A.” in letters that are smaller than the reference to “AMERICAN BLEND.” Because the U.S. references on the all of the aforementioned samples do not appear as part of a trademark or trade name, the provisions of 19 CFR 134.46 are relevant.
Customs has previously discussed the use of the phrase “American Blend” and the requirements of 19 CFR 134.46 in connection with the marking of cigarettes. HRL 560299, dated April 3, 1997, involved cigarettes manufactured in Mexico which were imported into the U.S. in cartons, broken down, and shipped to customers abroad as samples. The front panel of the cigarette pack was printed with the brand name and the words “American Blend Full Flavor.” The side panels were marked with the brand name and the phrases “UNDER AUTHORITY OF C.E.E.I. BALTIMORE MD IN USA” and “Product of North American Origin,” which the importer proposed to cover with a sticker stating that the cigarettes were a product of Mexico. While the cigarettes at issue in HRL 560299, supra, were ultimately destined for exportation, Customs stated that if the cigarettes were imported for use in the U.S., the special marking requirements of 19 CFR 134.46 would apply, requiring that the country of origin appear on the same side or surface as the references to “American Blend Full Flavor” and “Baltimore MD.”
Similarly, we find that the potential for customer confusion regarding the country of origin exists with the five hard packs containing king size cigarettes and all of the samples containing 100mm cigarettes. The U.S. reference (“AMERICAN BLEND” or “UNITED 100s AMERICAN BLEND”) do not appear in the context of warranty information or as a point of contact for customer service, making possibility of confusion regarding the country of origin of the product more likely, triggering the special marking requirements of 19 CFR 134.46. The likelihood of confusion is further compounded by the addition of the paper tape on the individual soft packs which reads, “BLENDED WITH THE FINEST TOBACCOS FROM THE U.S.A.” Therefore, the front and back panels of the individual hard pack and soft packs, as well as the cartons, must be marked with the country of origin preceded by “Made in,” “Product of” or words of similar meaning, printed in letters of comparable size to the reference to “AMERICAN BLEND.” In light of these requirements, the submitted samples of the individual hard packs containing king size (84mm) cigarettes, the individual hard packs and soft packs containing 100mm cigarettes, and the cartons for all cigarettes containing 100mm cigarettes do not meet the requirements of 19 CFR 134.46 and are unacceptable for purposes of 19 U.S.C. 1304 and 19 CFR Part 134.
HOLDING:
Where the front and back panels of cigarette cartons containing king size (84mm) cigarettes are printed with the registered trademark “UNITED KING SIZE AMERICAN BLEND,” the country of origin marking “MADE IN INDONESIA UNDER AUTHORITY OF FEDERAL TOBACCO, INC., U.S.A.” printed on the adjacent side panel, in contrasting ink in a type size smaller than other information but located in the left-hand corner separated from other product information satisfies the requirements of 19 CFR 134.47.
Because the words “AMERICAN BLEND,” the non-trademarked phrase, “UNITED 100s AMERICAN BLEND,” and the phrase “BLENDED WITH THE FINEST TOBACCOS FROM THE U.S.A.” are likely to create confusion regarding the origin of cigarettes made in Indonesia, the special marking requirements of 19 CFR 134.46 are triggered. Therefore, the front and back panels of the individual soft packs containing both king size (84mm) and 100mm cigarettes, the individual hard packs containing 100mm cigarettes, as well as the cartons for each of the products containing 100mm cigarettes must be printed with the country of origin preceded by “Made in,” “Product of” or words of similar meaning, printed in letters of comparable size to the reference to “AMERICAN BLEND.
A copy of this ruling letter should be attached to the entry documents filed at the time the goods are 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,
Myles B. Harmon
Acting Director
Commercial Rulings Division