MAR 2-05 CO:R:C:V 734327 RSD

Michael K. Tomenga, Esq.
Brian O'Shea, Esq.
McKenna & Cuneo
1575 Eye Street, N.W.
Washington, D.C. 20005

RE: Country of origin marking of imported sunglasses frames that will be used to make finished sunglasses; inserting the sunglasses lenses in the frames; substantial transformation; trademarks; ultimate purchaser; 19 CFR 134.1; 19 CFR 134.35; 19 CFR 134.47; 19 CFR 134.36(b); HQ 733654; HQ 709965

Dear Mr. Tomenga and Mr. O'Shea:

This is in response to your letter dated August 29, 1991, submitted on behalf of your client, Bausch & Lomb, concerning the country of origin marking requirements for imported eyeglass frames used to make non-prescription sunglasses. We regret the delay in responding. You have furnished a sample of the eyeglass frames and a sample of the completed sunglasses for our consideration.


Bausch & Lomb manufactures finished non-prescription sunglasses in the United States by using U.S. origin lenses and imported frames. The sunglasses are sold under the brand name "RAY-BAN U.S.A." All the frames that Bausch & Lomb imports will be used for the manufacturing of its sunglasses. None of the frames will be sold prior to the insertion of the lenses into the imported frames and the manufacture of the completed sunglasses. No other parties in the United States are licensed by Bausch & Lomb to manufacture RAY-BAN U.S.A. sunglasses.

Each set of sunglasses frames will be imported in an individual clear plastic polybag, which will be packed with other frames in a master shipping carton. The master shipping carton will be marked to indicate the country of origin of the frames. The shipping carton will be delivered sealed and unopened directly to Bausch & Lomb at its production facility in the United States.

Each imported frame will be marked with the Bausch & Lomb trademark, "RAY-BAN U.S.A." We have been informed that this trademark is registered with the United States Office of Patents and Trademarks. The trademark will appear on the temple of the frame and/or on the top of the bridge. The mark may be engraved into the frame or, with respect to certain plastic frames, may appear in raised molded lettering. Generally, the mark will appear in "blind" lettering (i.e. in colors that do not contrast with the background of the frames), although in certain cases the mark will appear in contrasting colors. The precise height of the lettering of the trademark will depend upon the width of the temple, but in all cases it will measure less than 1/8 of an inch. Shipments of the frames that are the subject of this ruling request will be imported at Rochester, New York and San Antonio, Texas.


Whether the imported sunglasses frames, normally excepted from individual marking pursuant to 19 CFR 134.35, are subject to marking because they display the trademark "RAY-BAN U.S.A."?


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 (or its container) 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. 27 C.C.P.A. 297 at 302; C.A.D. 104 (1940).

Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and the exceptions of 19 U.S.C. 1304. Section 134.1(b), Customs Regulations (19 CFR 134.1(b)), defines "country of origin" as the country of manufacture, production or growth of any article of foreign origin entering the U.S. Further work or material added to an article in another country must effect a substantial transformation in order to render such other country the "country of origin" within the meaning of the marking laws and regulations. The case of U.S. v. Gibson-Thomsen Co., Inc., 27 C.C.P.A. 267 (C.A.D. 98) (1940), provides that an article used in manufacture which results in an article having a name, character or use differing from that of the constituent article will be considered substantially transformed and that the manufacturer or processor will be considered the ultimate purchaser of the constituent materials. In such circumstances, the imported article is excepted from marking and only the outermost container is required to be marked (See Section 134.35, Customs Regulations).

The first question that must be resolved is who is the ultimate purchaser of the imported eyeglass frames. In HQ 733654 (October 29, 1990), Customs ruled that the insertion of non- prescription lenses into black nylon sunglasses frames in the U.S. constitutes a substantial transformation. Bausch and Lomb, in this case, is performing the same activity as was done in HQ 733654 by inserting non-prescription lenses into eyeglass frames to make sunglasses. Therefore, in accordance with HQ 733654, Bausch & Lomb would be substantially transforming the imported frames. Pursuant to 19 CFR 134.35, Bausch and Lomb would be the ultimate purchaser of the imported frames, and the frames would be excepted from individual country of origin marking as long as the outermost containers are properly marked. Although an article which is substantially transformed in the U.S. generally would be excepted from individual marking, the Customs Regulations provide that an exception from marking shall not apply to any article or retail container bearing any words, letters, names, or symbols described in section 134.46 or 19 CFR 134.47 (e.g. geographic references) which imply that an article was made or produced in a country other than the actual country of origin. 19 CFR 134.36(b). 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. The purpose of 19 CFR 134.47 is to prevent the ultimate purchaser from being misled by a reference to a place other than the country of origin.

Under existing Customs policy, the presence of the trade- mark "RAY-BAN U.S.A." on the imported sunglasses frames would trigger the application of 19 CFR 134.36(b) and 19 CFR 134.47, preventing the frames from being excepted from individual country of origin marking. Customs has ruled that pursuant to 19 CFR 134.36(b), an imported article bearing any U.S. reference (including trademarks) may not be excepted from marking even though the article will be substantially transformed in the U.S. prior to retail sale. In HQ 709965, (May 18, 1979), published as C.S.D. 79-412, Customs ruled that valve bodies made in Canada which were marked "Cleveland, Ohio, U.S.A." could not be excepted from country of origin marking even though the ultimate purchaser, the U.S. company that purchased and used the valve bodies in the manufacture of automotive pressure relief valves, knew the country of origin of the valve bodies and would not be misled by the "Cleveland" marking. The rationale for this determination was that the "final consumer" of the valves might incorrectly conclude that the automatic pressure relief valve was made entirely in the U.S. The ruling stated "because section 19 CFR 134.36(b) is to be strictly construed and the marking on the valve body is potentially misleading to the final consumer there should be compliance with the specific marking requirements of 19 CFR 134.46." This policy has been applied to situations where the U.S. reference appears as part of a trademark or trade name.

After careful consideration, Customs has determined that this policy pertaining to 19 CFR 134.36(b) should not be applied automatically to all imported articles or their containers which bear a non-origin geographical reference. For example, we believe that this policy is inappropriate in cases such as the one presented here where an imported article, bearing an importer's trademark or trade name with a U.S. reference, will be substantially transformed by the importer in the U.S. In such an instance, the importer will be the ultimate purchaser, and if there is sufficient evidence to establish that it knows the origin of the article then the ultimate purchaser will not be misled by the trademark or trade name and there is no reason to require the article to be individually marked. So long as the ultimate purchaser is advised of the country of origin of an article (e.g., the ultimate purchaser receives the imported article in a properly marked container) then the purpose behind 19 U.S.C 1304 will be fulfilled.

The term "final consumer" is not found within the framework of 19 U.S.C. 1304 or its implementing regulations. Rather, 19 CFR 134.36(b) must be read as referring to words, symbols, etc. which imply to the ultimate purchaser a country of origin other than the actual country of origin of an article. In cases in which the ultimate purchaser is arranging the importation of articles to which his own trademark is affixed, there is no risk that the ultimate purchaser will be misled as to actual country of origin of the imported article. If markings which appear on the substantially transformed articles are misleading to subsequent purchasers, there exist other legal remedies which are beyond the scope of Section 304 of the Tariff Act.

In this case, we find that the presence of the trademark "RAY-BAN U.S.A." does not prevent the individual sunglasses frames from being excepted from country of origin marking. The importer, Bausch & Lomb, will be substantially transforming the imported frames, and under 19 CFR 134.35, it is the ultimate purchaser of the frames. Bausch & Lomb's trademark "RAY-BAN U.S.A." on the frames will not imply to Bausch & Lomb that the frames were made or produced in a country other than the actual country of origin.

Bausch & Lomb has assured Customs that it is the only party which will be using the imported frames to make sunglasses and that it will not sell the frames to any one else. Moreover, because the frames will be substantially transformed in the U.S., Bausch & Lomb is not obliged under 19 U.S.C. 1304 and 19 CFR Part 134 to indicate the foreign origin of the frames to subsequent purchasers in the U.S. Accordingly, we find under 19 U.S.C. 1304 and 19 CFR Part 134, that the trademark does not convey misleading, erroneous, or false information regarding the origin of the frames or the finished sunglasses to the ultimate purchaser and that the provisions of 19 CFR 134.36(b) do not apply. If the marking on the containers for the frames is conspicuous and otherwise proper, then the frames can be excepted from marking. (See 19 CFR 134.32(d)).


The presence of the trademark "RAY-BAN U.S.A." on the frames is not misleading to the ultimate purchaser, Bausch & Lomb. If the District Directors at the ports of importation are satisfied that the frames will reach Bausch & Lomb in unopened containers conspicuously marked with the country of origin of the frames, then the frames can be excepted from individual country of origin marking under 19 CFR 134.35 and 19 CFR 134.32(d) and the provisions of 19 CFR 134.36(b) do not apply.

All rulings or the relevant sections of those rulings applying the prohibition of 19 CFR 134.36(b) to articles imported with trademarks or trade names bearing U.S. references and substantially transformed after importation, which are inconsistent with this ruling are revoked.


John Durant, Director