MAR-2-05 RR:TC:SM 559748 DEC
Area Port Director
U.S. Customs Service
135 High Street, Room 350
Hartford, Connecticut 06103
RE: Application for Further Review of Protest No. 0401-96-100079
concerning
country of origin marking of imported cigars; C.I.E. 442/44;
C.I.E. 116/45;
C.I.E. 134/45; C.I.E. 1351/61; HRL 734648; HRL 735466; 19
CFR 134.46;
19 CFR 134.25
Dear Sir:
This is in reference to Protest No. 0401-96-100079 and the
Application for Further Review dated February 9, 1996, timely
submitted by Sharrets, Paley, Carter & Blauvelt, P.C. on behalf
of Davidoff of Geneva (CT) Incorporated (Davidoff), against your
issuance of marking notices and/or notices to redeliver in
connection with the entry of imported cigars.
FACTS:
Davidoff is an importer of premium cigars. Counsel had
filed a ruling request dated January 30, 1996, regarding the
proper country of origin marking for imported cigars.
Subsequently, we received the above-referenced Protest on the
same issue. We consolidated the ruling request with the Protest
now at issue. Customs has issued various marking notices to the
Protestant stating that the inside of the boxes of cigars must be
marked to comply with several Customs Information Exchange
(C.I.E.) issuances dating back to 1944. Counsel and a
representative from Davidoff met with members of our office on
May 20, 1996.
The articles at issue are retail hinged lid boxes of wood or
cardboard imported containing cigars, cigarillos, or mini
cigarillos. Counsel states that virtually all of the articles at
issue are sold in a box as one retail unit and that many of the
boxes are
sealed until they reach the ultimate purchaser. Counsel and
protestant also stated during the meeting that the cigars and
cigarillos are never sold individually from the boxes in which
they are imported. The four types of boxes at issue are
described as follows:
1. Wooden box which measures approximately 6-13/16 inches
wide by
1-5/16 inches high by 5-5/8 inches deep with a hinged top and
brass closure and will contain 20 individually wrapped cigars.
When imported, the brass closure may be opened, but the cigars
are sealed in the box with an air tight cellophane wrapping. The
phrase "Zino Relax Sumatra" is printed on the exterior of the box
on the top, front, left-side, and right-side panels as well as on
the inside of the lid. Counsel indicated at the May 20, 1996,
meeting that the Protestant's parent company has applied for a
trademark for "Zino Relax Sumatra". The country of origin (on
the sample submitted - "Made in Switzerland") is printed on the
bottom panel of the exterior of the box. On the inside of the
lid the phrase "Special Selection Zino Relax Sumatra Humidor-Pack
100%Tobacco" is printed. The cigars contained in these boxes
will virtually always be sold to the consumer in the box as one
retail unit. Counsel indicated at the May 20, 1996, meeting
that, in rare instances, authorized sellers of Davidoff products
may open the retail containers and place the wrapped cigars in a
wooden cigar display box. Counsel and the Davidoff
representative explained that this display box is used by the
tobacconist when discussing various types of cigars with
customers. The wooden display box, as indicated in photographs
submitted by counsel, are clearly and prominently marked with
information about the country of origin of the particular cigar's
wrapper, filler, and binder.
2. Wooden box which measures approximately 8 inches wide
by 3-7/8 inches deep and 1-3/8 inches high. This box has a
hinged top and is sealed using a small nail and will contain 100
unwrapped mini cigarillos when imported. The phrase "Davidoff
Mini Cigarillos" is printed on the exterior of the box on the
top. Written on the front of the box is "100% Tobacco Davidoff
Special Selection." On the left-side and right-side panels, the
phrase "100 Mini Cigarillos" is printed. The country of origin
(on the sample submitted - "Made in Denmark") is printed on the
back panel of the exterior of the box. On the inside of the lid,
the phrase "Davidoff Mini Cigarillos" is printed. The cigarillos
contained in these boxes will always be sold to the consumer in
the box as one retail unit. The Davidoff representative
indicated that the company does not believe it to be sanitary to
break up the boxes of mini cigarillos and offers these articles
for sale exclusively by the box.
3. Wooden box which measures approximately 4 inches wide
by 3-7/8 inches deep and 1-3/8 inches high. This box has a
hinged top and is sealed using a
small nail and will contain 50 unwrapped mini cigarillos when
imported. This box will be completely wrapped in cellophane.
These mini cigarillos are always sold by the box. The phrase
"Davidoff Mini Cigarillos" is printed on the exterior of the box
on the top. Written on the front of the box is "Davidoff 100%
Tobacco Special Selection." On the left-side and right-side
panels, the phrase "100 Mini Cigarillos" is printed. The country
of origin (on the sample submitted - "Made in Denmark") is
printed on the back panel of the exterior of the box. On the
inside of the lid the phrase "Davidoff Mini Cigarillos" is
printed.
4. A white cardboard box which measures approximately 3-5/8 inches wide by 3/8 inch high and 3-1/16 inches deep with a
hinged top containing 10 unwrapped cigarillos. The box is
wrapped completely in cellophane. The phrase "Made in Denmark"
is printed on the bottom panel on the exterior of the box. The
mini cigarillos contained in these boxes will be sold exclusively
in their imported boxes.
ISSUE:
Whether the country of origin marking on the various
containers of cigars and cigarillos as described above is in
compliance with 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.
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 (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 134.31(b), Customs Regulations (19 CFR 134.41(b)), states
that a marking should be at least sufficiently permanent to
insure that, in any reasonably foreseeable circumstance, the
marking shall remain on the article or its container until it
reaches the ultimate purchaser. The ultimate purchaser in the
U.S. must be able to find the marking easily and read it without
strain.
In 1944, 1945, and 1961, Customs issued various C.I.E.
letters regarding the country of origin marking requirements for
cigars imported in boxes. In C.I.E. 442/44,
dated September 28, 1944, it was stated that in order to insure
that ultimate purchasers of either individual cigars or boxes of
cigars may be apprised of the name of the country of origin of
the cigars, marking to indicate such origin shall appear both on
the inside of the lid of the box and on the outside of the box.
Later C.I.E. letters specifically stated that this marking
requirement was applicable to cigars imported in "special" or
"premium" containers with hinged lids. C.I.E. 116/45, dated
March 13, 1945. In this document, Customs described some of
these "special" or "premium" boxes as being made of natural cedar
wood or handsome mahogany cabinets with a highly polished surface
containing 50 to 100 cigars. In contrast, the boxes of cigars at
issue in this protest contain only 20 full-sized cigars, 100 or
fewer mini cigarillos, or only ten cigarillos and, while the
wooden boxes are not inexpensive, they are not made of the same
"special" or "premium" wood as was described in C.I.E. 116/45 nor
are they highly polished.
Subsequently, C.I.E. 134/45, dated March 19, 1945, canceled
C.I.E. 116/45. C.I.E. 134/45 stated that imported cigars in
"special" or "premium" containers with hinged lids must be marked
inside and outside in accordance with C.I.E. 442/44. This C.I.E.
further provides that other special containers of cigars shall be
marked on the outside of the container in a conspicuous place so
the marking will be visible to a retail purchaser of the
individual cigars. C.I.E. 1351/61 cited to the marking
requirement first articulated in C.I.E. 442/44.
When cigar containers are made from a premium wood or are
lavishly finished, they are more likely to be displayed with the
lids open so that an ultimate purchaser may observe the premium
container. It is the position of the Customs Service that this
line of C.I.E.'s applies only to "special" or "premium"
containers analogous to those described in C.I.E. 116/45. The
cigar boxes at issue in this Protest are not "special" or
"premium" cigar boxes analogous to those described in the
C.I.E.'s.
Moreover, since the cigars and cigarillos are never sold
individually from the boxes in which they are imported, the
purpose for the required marking on the inside lid as set forth
in the above C.I.E.'s does not exist under the facts of this
case. We therefore find that the marking on the bottom panel of
the box of 20 cigars is in a conspicuous location because the
marking will be readily visible to an ultimate purchaser who
inspects the cigar box. Similarly, the country of origin marking
on the back panel of the mini cigarillo boxes containing 50 or
100 mini cigarillos and the cardboard box containing ten
cigarillos is conspicuously marked as well.
While Customs generally does not consider a marking
appearing on the bottom of a container to be in a conspicuous
location (see Headquarters Ruling Letter (HRL) 734648, dated July
14, 1992), in HRL 735466, dated August 4, 1994, we concluded that
various small appliances which were imported into the United
States for domestic sale in retail boxes with dimensions akin to
shoe boxes or, at most, twice that size, were properly marked.
Although the retail boxes in HRL 7345466 were clearly marked
"Made in Mexico" on the bottom panels, they were also marked on
two side panels where U.S.-references (domestic addresses)
appeared. Considering the relatively small size of the appliance
boxes, their ease in handling, and the additional side panel
markings, we allowed the bottom panel markings. In the instant
case, the retail cigar boxes are significantly smaller and
lighter than the articles addressed in HRL 735466, and an
ultimate purchaser may more easily manipulate the cigar box to
reveal the bold and stamped-in country of origin marking on the
bottom panel of the box of 20 cigars. Similarly, the wooden
boxes containing 100 mini cigarillos and the wooden box
containing 50 mini cigarillos are conspicuously marked with the
country of origin on the back panel of these containers. The
marking on the bottom panel of the small and very light cardboard
box containing 10 cigarillos is conspicuous and an ultimate
purchaser may easily find the country of origin marking on the
bottom panel of the cardboard container.
The phrase "Zino Relax Sumatra" is printed on the exterior
of the box containing 20 cigars on the top, front, left-side, and
right-side panels as well as on the inside of the lid. 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 United State appears, the
article shall be legibly, conspicuously, and permanently marked
to indicate the name of the country of origin of the article
preceded by "Made in", "Product of", or other similar words, in
close proximity or in some other conspicuous location. In other
words, if the question concerns a trade name or trademark, the
country of origin marking needs only to meet the general standard
of conspicuousness. Although 19 CFR 134.47 applies when a
locality reference appears as part of a trademark, Customs has
accepted a filed application with the U.S. Patent and Trademark
Office as sufficient evidence of a trademark for purposes of 19
CFR 134.47 since the regulation does not specify what evidence is
needed to establish a trademark. Therefore, in this case,
although only an application has been filed, Customs will allow
the more lenient requirements of 19 CFR 134.47 to apply for
purposes of this Protest.
In the May 20, 1996, meeting, counsel presented The Tobacco
Encyclopedia published by the Tobacco Journal International.
After a review of this document, Customs recognizes that the term
Sumatra in the context of purchasing cigars does not readily
connote that the cigars that are a product of Sumatra. Rather, a
Sumatra cigar
is a generic term for light-colored cigars as compared to the
dark or black Brazil cigars. In this case, the word "Sumatra" is
used in the context of a trademark and Customs is
satisfied that the word does not serve to confuse the ultimate
purchaser of the origin of
the cigars. We find the country of origin marking of the box of
20 cigars which appears on the bottom panel of the box to be a
conspicuous location. Consequently, we find the country of
origin marking on the box of 20 cigars to meet the requirements
of 19 U.S.C. 1304 and 19 CFR Part 134.
In rare instances, an authorized seller of Davidoff products
may open the retail containers of 20 cigars and place the wrapped
cigars in a wooden cigar display box. Counsel and the Davidoff
representative explained that this display box is used by the
tobacconist when discussing various types of cigars with
customers. The wooden display box is marked with information
about the origin of the particular cigar's wrapper, filler, and
binder. However, the origin of the cigars is not provided.
Section 134.25, Customs Regulations (19 CFR 134.25),
requires that containers of repackaged J-List articles or
articles incapable of being marked must be marked to indicate the
country of origin of the contents by either the importer who
repackages the articles or the purchaser or transferee of such
articles who does the repacking, and that the importer must
certify to the port director on entry that the repacked
containers will be marked or that he will notify the purchaser or
transferee of such marking requirements. In this case, the
decorative wrapping of the individual cigar represents the
cigar's container. Accordingly, the marking requirements of 19
U.S.C. 1304 and 19 CFR 134.11, mandate that the outermost
container which includes the cigar wrapper in which the article
will reach the ultimate purchaser must be marked in a conspicuous
place as legibly, indelibly and permanently as its nature will
permit. Any method of marking at any location will be acceptable
as long as the country of origin will appear conspicuously on
such containers. Consequently, the protestant must certify to
the port director that to the extent that the imported cigars are
removed from the marked containers in which the cigars are
imported, the wrappers on cigars which are removed will be marked
to indicate their country of origin.
The wood box containing 50 mini cigarillos with the country
of origin denoted on the back panel of the wood box and the
cardboard box containing 10 cigarillos with the country of origin
denoted on the bottom panel of the cardboard package will be
wrapped completely in cellophane when imported. Since these
packages will be completely sealed in cellophane wrapping, a
marking on the inside lid of these cigar boxes will not serve the
ultimate purchaser since it will not convey origin information to
the ultimate purchaser at the time of purchase. In situations
where the article is completely sealed when it is sold at retail,
the country of origin marking should appear
conspicuously on the outermost retail container. After examining
the samples submitted with this Protest, we find that these
containers are conspicuously marked with their country of origin.
HOLDING:
The cigar boxes as described above are properly marked
pursuant to 19 U.S.C. 1304. To the extent that the cigars are
removed from the imported marked containers prior to reaching the
ultimate purchasers, the protestant must comply with the
certification requirements set forth in 19 CFR 134.25.
Accordingly, the protest should be granted subject to compliance
with 19 CFR 134.25.
In accordance with Section 3A(11)(b) of Customs Directive
099 3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be mailed by your office to the
protestant no later than 60 days from the date of this letter.
Any reliquidation of the entry in accordance with the decision
must be accomplished prior to mailing of the decision. Sixty
days from the date of the decision the Office of Regulations and
Rulings will take steps to make the decision available to customs
personnel via the Customs Rulings Module in ACS and the public
via the Diskette Subscription Service, Freedom of Information Act
and other public access channels.
Sincerely,
John Durant, Director
Tariff Classification and Appeals
Division