MAR-2-05 CO:R:C:V 735206 RSD
Diane L. Weinberg, Esq.
Sandler, Travis & Rosenberg
505 Park Avenue
New York, New York 10022-1106
RE: Country of origin marking of a men's dress shirt; conspicuous
location; hang tags; 19 CFR 134.47; 19 CFR 134.46; HQ 735085
Dear Ms. Weinberg:
This is in response to your letter of June 2, 1993, on
behalf of the Manhattan Shirt Company, a division of the Salant
Corporation, requesting a ruling on the country of origin marking
requirements for a men's dress shirt. A sample of the dress
shirt in a poly bag was received. A second submission dated
August 20, 1993, with a mock-up of a proposed hang tag for the
shirt has also been received.
FACTS:
Manhattan Shirt Company, a division of Salant Company, plans
to import men's dress shirts. The sample shirt is manufactured
from a blend of 60 percent cotton and 40 percent polyester.
"Manhattan" is a registered trademark of the Salant Corporation.
The shirt will have a brand name label in the center of the neck.
Adjacent to the brand label and stitched to a seam in the neck,
is a label containing the size, fiber content and country of
origin. This label states "Made in Guatemala". Below the brand
name label is a removable paper label attached to the garment by
means of an adhesive, which repeats the trademark "Manhattan".
The garment is imported and sold at retail in a clear poly
bag which repeats the trademark "Manhattan" several times on its
front and back. The country of origin on the label in the neck
of the shirt is visible through the poly bag. Manhattan also
proposes to attach a hang tag to a button on the placket which
contains the American flag on one side. On the reverse side of
the hang tag is a guarantee advising purchasers to write to
Manhattan's address in New York if they are not satisfied with
the garment.
In response to concerns raised during telephone
conversations with a member of my staff, Manhattan agreed to
revise its hang tag to put a country of origin marking on it.
The country of origin marking will vary depending on where the
shirt is made. Manhattan Shirt Company has advised that the
country of origin will always appear on the hang tag in question.
The country of origin marking on the mock-up of the proposed of
the hang tag appears on the bottom in letters of about 1/8 of an
inch. The proposed marking on the hang tag reads "Assembled in
Mexico" or "Assembled in Guatemala". You have indicated that the
company will use the words "Assembled in" on the imported shirts
only when they are entered as American Goods Returned.
ISSUE:
Will the proposed country of origin markings on the sewn-in
label in the neck area of the shirt and on the attached hang tag
satisfy the requirements of the 19 CFR 134.47 for conspicuous
marking?
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 (or 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.
Part 134, Customs Regulations (19 CFR Part 134), implements
the country of origin marking requirements and exceptions of 19
U.S.C. 1304. As provided in 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 U.S. is able to
find the marking easily and read it without strain.
In addition, section 134.46, Customs Regulations (19 CFR
134.46), requires that when 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, appear 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 (HQ 708994, dated April
24, 1978). The purpose of 19 CFR 134.46 is to prevent the
possibility of misleading or deceiving the ultimate purchaser as
to the origin of the imported article.
The same purpose is effected by Section 134.47, Customs
Regulations (19 CFR 134.47), which 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 applies to
the size of the lettering.
The multiple appearances of the registered trademark
"Manhattan" on the label sewn into the neck area, adhesive
sticker, hang tag, and poly bag are geographical references which
trigger the requirements of 19 CFR 134.47. Therefore, the
country of origin marking must appear in "close proximity" to the
word "Manhattan" or at least in some other conspicuous location.
The prominence and the multiple use of the word "Manhattan"
on the shirt and its poly bag is such that the country of origin
marking solely on the label on the neck of the shirt would not by
itself be conspicuous. This conclusion is consistent with
previous determinations in which we have found that marking which
might otherwise have been in a conspicuous place is inadequate
because of the appearance of the words and symbols which might in
their context suggest to the ultimate purchaser a country of
origin other than the actual country of origin of the foreign
article. For example, in HQ 734085 (June 4, 1993), we found that
the country of origin marking on the back of packages of frozen
vegetables was not in a conspicuous location because of the
prominent appearance of the trademark "American Mixtures" on the
front of the package. Although the back of the package was a
usual location for the country of origin marking, in that case
because of the "American Mixtures" trademark, the country of
origin marking on the package was not adequate. We indicated
that the circumstance and context dictated that the marking
appear on the front side of the packaging.
We believe that this approach must be used in this case.
Because of the multiple use of the word "Manhattan", it is
necessary to require an additional country of origin marking to
give effect to the purpose of 19 CFR 134.47 to assure that the
ultimate purchaser is not misled or deceived as to the origin of
the product he/she purchases.
Manhattan Shirt's proposal to place an additional country of
origin marking on the hang tag will satisfy this requirement.
The hang tag will be prominently displayed on the front of the
shirt attached on a button on the placket. It is likely to
attract the attention of a potential purchaser. The country of
origin marking on the tag is large enough and in such a location
that it should be noticed from a casual inspection of the shirt.
The country of origin marking will be in letters large enough,
about an 1/8th of an inch, and assuming that the marking on the
finished hang tag is printed clearly, the ultimate purchaser
should be able to be read the marking without strain.
Accordingly, the combination of putting the country of origin
marking on a sewn-in label in the neck area and on the hang tag
on the front of the shirt should advise the ultimate purchaser of
the country of origin of the shirt and clarify any confusion as
to origin of the shirt due to the use of the trademark
"Manhattan". Thus the proposed markings on the hang tag and in
the neck area will satisfy the conspicuousness requirement of 19
CFR 134.47.
You should also be advised that the marking "Assembled in
" will only be acceptable marking if the article is eligible
for a partial exemption from duty under 9802.00.80, HTSUS. In
addition, although the back of the hang tag has a U.S. address,
it does not trigger the requirements of 19 CFR 134.46 because the
reference is in the context of warranty information and customer
assistance. Customs has previously indicated that a U.S.
reference in the context of warranty information will not mislead
the ultimate purchaser as to the origin of the garment. See HQ
733963 (January 17, 1993).
HOLDING:
The combination of the country of markings on the sewn-in
label in the neck area of the shirt and on the hang tag attached
to the shirt are sufficient to satisfy the requirements for 19
CFR 134.47.
Sincerely,
John Durant, Director
Commercial Rulings Division