MAR 2-05 CO:R:C:V 732234 pmh
William D. Outman, Esquire
Baker & McKenzie
815 Connecticut Avenue, N.W.
Suite 1100
Washington, D.C. 20006-4078
RE: Country of origin marking on imported luggage
Dear Mr. Outman:
This is in response to your letters of March 23, 27 and 31,
1989, in which you request a ruling on behalf of Samsonite
Corporation (the importer) regarding country of origin marking on
imported luggage.
FACTS:
The subject merchandise is imported matched luggage which can
either be sold in five-piece sets or individually. Approximately
22,000 such sets have been imported for use by a domestic
retailer in its "Discover America" marketing campaign. A sample
set has been submitted for review. The set consists of a large
suitcase, a small suitcase, a tote bag, a cargo bag and a garment
bag. With the exception of the garment bag, each piece of
luggage has a hangtag attached to its handle on which the
registered service mark "Discover America" is prominently
displayed. Each of the five pieces of luggage also has a fabric
tag sewn into one of its inside seams which bears the name of the
importer, the importer's domestic address and the words "Made In
Taiwan." Additional material submitted indicates that the
"Discover America" campaign is a nationwide marketing program
sponsored by the Travel Industry Association of America to
promote travel in the United States. Participants in the
campaign include retailers, air, rail and bus companies, as well
as certain cruise lines and hotels. The subject luggage will be
displayed by the retailer in its stores throughout the U.S.
amidst prominent "Discover America" promotional material.
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ISSUE:
Whether the country of origin marking on the subject luggage
is conspicuous within the meaning of section 304, Tariff Act of
1930, as amended (19 U.S.C. 1304), and section 134.47, Customs
Regulations (19 CFR 134.47).
LAW AND ANALYSIS:
As you are aware, 19 U.S.C. 1304 requires, in general, that
all articles of foreign origin imported into the United States be
legibly, conspicuously and permanently marked to indicate the
country of origin to the ultimate purchaser in the U.S. 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 19 CFR 134.41, the country of origin
marking is considered conspicuous if the ultimate purchaser in
the U.S. is able to find the marking easily and read it without
strain.
In Customs Circular MAR-2-RM (dated January 16, 1970)
Customs determined that handbags should be marked by means of a
fabric label sewn to the lining in a conspicuous place. In HQ
723116, dated September 15, 1983, Customs ruled that the side
seam of a handbag was a sufficiently conspicuous place to attach
the fabric label bearing the country of origin marking. Customs
reasoned that a potential purchaser would open the bag and
inspect its interior before buying and that the label would then
be easily seen.
We find that the same rationale applies in this case. It is
our opinion that a potential purchaser would unzip the luggage
and inspect the interior before making a purchase and such
inspection would immediately reveal the fabric label sewn into
the inner seam.
The question here is whether the country of origin marking
sewn into the inside seam of the luggage is sufficiently
conspicuous in light of the registered service mark "Discover
America" which appears on a hangtag attached to the handle of the
luggage. In determining whether or not a particular country of
origin marking is sufficiently conspicuous, Customs will take
into account the presence of words or symbols on the article
which may mislead the ultimate purchaser as to the country of
origin. Consequently, if the words "United States," or
"America," the letters "U.S.A.," any variation of such words or
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letters, or the name of any city or locality in the United
States, or the name of any foreign country or locality other than
the country of origin, appears on an imported article in such a
way so as to be misleading to the ultimate purchaser, special
marking requirements are triggered. Section 134.46, Customs
Regulations (19 CFR 134.46), requires that in such case, the name
of the country of origin must appear legibly, permanently and in
close proximity to such words, be in letters of at least
comparable size and be preceded by the additional words "Made
in," "Product of," or other words of similar meaning. However,
section 134.47, Customs Regulations (19 CFR 134.47), provides a
special exception from marking where the word "America" appears
on the article as part of a trademark or trade name or as part of
a souvenir marking. In such circumstances, no "comparable size"
requirement exists and the country of origin marking can either
be "in close proximity or in some other conspicuous location."
In C.S.D. 88-38 (July 18, 1988) Customs ruled that prominent
and decorative use of the trademark "Perry Ellis America"
displayed on the outside of a T-shirt was not misleading. In
that case, the country of origin marking appeared on a label
attached to the inside neck of the shirt which is the usual
location for marking shirts. Although the words "Made in
Zimbabwe" were in letters significantly smaller than those used
for the words "Perry Ellis America," Customs found the country of
origin mark to be conspicuous and proper because it could be
found easily upon casual inspection and was affixed in its usual
location.
In HQ 723116 (September 15, 1983) Customs found that certain
handbags imported from Taiwan and bearing the trademark "American
West" on a tag sewn to the outer pocket were properly marked
according to 19 CFR 134.47. In that case, as in C.S.D. 88-38,
Customs based its determination on the fact that the country of
origin marking, which was affixed to a seam inside the handbag,
could be readily found and easily read upon casual inspection.
In each of the cases noted above, Customs found that use of
the word "America" or "American" was not misleading based on the
fact that the word was part of a registered trademark and that
the country of origin marking was conspicuous. That is, although
the country of origin mark in each case was significantly less
prominent and was not necessarily located in close proximity to
the trademark, it could be found upon casual inspection, was
otherwise proper and, therefore, satisfied the requirements of 19
CFR 134.47.
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Likewise, in the case at hand, it is our opinion that
19 CFR 134.47 applies and that use of the service mark "Discover
America" would not mislead the ultimate purchaser. We note that
section 134.47 refers to trademarks, tradenames and souvenir
markings and does not specifically include service marks.
However, the rationale for granting a special exemption for
trademarks and tradenames applies to registered service marks, as
well. Section 3 of the Lanham Act (15 U.S.C. 1053) provides that
service marks used in commerce shall be registrable, in the same
manner and with the same effect as are trademarks, and when
registered they shall be entitled to the protection provided
herein in the case of trademarks. Accordingly, it is our opinion
that service marks are comparable to trademarks, tradenames and
souvenir markings and that the intent and spirit of section
134.47 was to include registered service marks.
After careful examination of the samples and review of the
submitted materials, we conclude that the country of origin
marking on the subject luggage is sufficiently conspicuous to
satisfy the requirements of 19 CFR 134.47. We are of the opinion
that the words "Discover America" mark are used to show the
retailer's support for the Travel Industry Association of America
nationwide marketing campaign that is designated by that
registered service mark, and not to mislead or deceive the
ultimate purchaser with respect to the origin of the luggage.
HOLDING:
Based on all the factors in this case and after careful
examination of the submitted samples, we find that the luggage,
which is conspicuously marked "Made in Taiwan R.O.C." by the use
of a fabric tag sewn into one of the inside seams, and which
displays a hangtag with the words "Discover America," is legally
marked according to 19 U.S.C. 1304 and 19 CFR 134.47.
Sincerely,
Harvey B. Fox, Director
Office of Regulations and Rulings