MAR-2-05 CO:R:C:V 734245

Allan H. Kamnitz, Esq.
Sharretts, Paley, Carter & Blauvelt, P.C.
67 Broad Street
New York, NY 10004

RE: Country of Origin Marking - Toy Car Replicas; Conspicuous Place; 19 CFR 134.46; 19 CFR 134.47; NY Ruling 863533 Modified.

Dear Mr. Kamnitz:

This is in response to your submissions of July 1, 1991, and January 17, 1992, on behalf of the Ertl Company regarding its line of toy cars sold under the "American Muscle" trademark.

FACTS:

The toy cars are made in China. Although the cars are so marked, their packaging effectively prevents casual inspection for country of origin marking. Thus, it is the marking of the package which must satisfy the country of origin marking requirements for the article. As packaged, the car is mounted on a pedestal within a box, five sides of which display the trademark "American Muscle" in prominent lettering. The country of origin is marked by the words "Made in China" rendered in lettering approximately 1/8" high on the bottom of the box.

A ruling on classification of the article issued by the Area Director, New York Seaport (NY 863533, June 14, 1991), examined the marking of the article and found it deficient. It is apparent that this portion of the ruling relied upon 19 CFR 134.46, which provides that in any case in which a reference to a country or geographic location other than the country of origin appears on an imported article or its container, the name of the actual country of origin must appear in close proximity to such reference. The ruling stated that the name of the car's country of origin, China, must appear directly above, below, or next to the words "American Muscle" in each instance in which it is used. This would require the country of origin to appear on all six sides of the box.

You have asked this office to review the New York determination. Pursuant to our consideration of this issue, a sample package with revised marking has been offered, upon which the words, "Made in China" are printed on the front of the package below the cellophane display window. Specifically, this marking is located in the lower right hand corner of the package's front panel in white lettering approximately 1/2" high against a black background. At a conference at Customs Headquarters on January 9, 1992, you indicated that if this revised marking was acceptable to Customs, Ertl would begin using it immediately.

ISSUE:

Does the proposed marking of the package containing the Ertl "American Muscle" car satisfy the country of origin marking requirements?

LAW AND ANALYSIS:

Pursuant to section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304), every article of foreign origin imported into the U.S. must be marked in a conspicuous place with the English name of its country of origin. As set forth in the implementing regulations, Part 134, Customs Regulations (19 CFR Part 134), the ultimate purchaser must be able to find the marking easily and read it without strain. 19 CFR 134.41(b).

Upon examination of the original sample packaging this office agrees with the Area Director, New York Seaport, that the marking on the bottom of the package was insufficient. However, we do not agree that the presence of the name, "American Muscle" triggers the requirements of 19 CFR 134.46, such that the name of the toy's country of origin must appear in close proximity on the package to each use of the name "American Muscle" and in lettering of comparable size.

In the opinion of this office, the applicable rule in this circumstance is set forth at 19 CFR 134.47, because "American Muscle" is a trademark registered with the U.S. Patent and Trademark Office. As provided in 19 CFR 134.47, when the name of a location other than the country of origin appears as part of a trademark or trade name or as part of a souvenir marking, the marking of country of origin must appear in close proximity to the trademark "or in some other conspicuous location". That is, marking dictated by 19 CFR 134.47 is not strictly subject to the "close proximity" and "lettering of comparable size" requirements set forth in 19 CFR 134.46, but may be placed instead in a location which is conspicuous under the circumstances.

Here, this office finds that the corrected marking on the sample packaging is in a conspicuous location within the meaning of 19 CFR 134,47. This marking is easily found and read without strain, which makes the numerous references to "American Muscle" acceptable without additional marking. Accordingly, New York Ruling 863533 is modified such that the marking on the front of the packaging containing the Ertl "American Muscle" toy car is acceptable, and no additional marking is required.

HOLDING:

Marking on the front of the package as demonstrated on the sample package is acceptable under 19 CFR 134.47. New York Ruling 863533 is modified accordingly.

Sincerely,

John Durant
Director, Commercial
Rulings Division

cc: Area Director
New York Seaport