MAR-2-05 CO:R:C:V 734034 NL
Disrict Director
U.S. Customs Service
477 Michigan Avenue
Detroit, MI 48266
RE: IA 14/91; Country of Origin Marking - Instant Coffee; 19 CFR
134.46; 19 CFR 134.47;
Dear Sir:
This is in response to your memorandum dated February 28,
1991, requesting internal advice concerning the labels on certain
instant coffee. The Chief, National Import Specialist Branch 1
has offered additional comments and designated the file as IA
14/91. The views of the importer, Community Coffee Company,
Inc., have also been received through counsel. Samples of the
plastic jars and labels have been submitted for review.
FACTS:
Community Coffee imports instant coffee which is processed
and packaged in Canada into retail plastic jars bearing the
"Community" brand. The instant coffee is made from beans grown,
roasted, and partly processed in Brazil and Columbia. On the
front of the each jar appear the words, "New Orleans Blend
Instant Coffee and Chicory". The name "New Orleans Blend" is
registered as a trademark in the State of Louisiana. On one side
of the jar appear the words, "New Orleans Blend Instant Coffee /
A smooth, full-bodied blend of the world's finest coffees,
including Brazil and Colombia, with chicory from France /
Distributed by Community Coffee Company, Inc. Baton Rouge, LA
70686". On the other side of the jar the consumer is invited to
direct questions to a toll-free number. Callers from outside
Louisiana are given a separate number to call.
It is your position that the requirements of 19 CFR 134.46
are applicable, such that the names "Brazil", "Colombia", and
"France" must appear in close proximity to, and in lettering of
comparable size, to the name "New Orleans" as it appears in the
trade name. The need for a strict compliance with the
requirements of 19 CFR 134.46 is enhanced, in your view, by the
presence of the reference to "Baton Rouge" on the side panel,
which could lead the ultimate purchaser to believe the article is
of U.S. origin.
The Chief, National Import Specialist Branch 1, New York
Seaport, agrees that the requirements of 19 CFR 134.46 are
triggered by the presence of the name "New Orleans Blend" on the
front of the jar. That official finds that the origin of the
coffee is not indicated conspicuously, or in close proximity or
lettering of comparable size to the name "New Orleans Blend". It
is his view that the countries of origin should be indicated on
the front panel of the jar.
The importer argues that the applicable provision is 19 CFR
134.47, which provides that if, as part of a trademark or trade
name, there is a reference to a location other than the country
of origin, the name of the country of origin must appear in close
proximity to such reference or in some other conspicuous
location, preceded by "made in", "product of", or other similar
words. In this case, the names of the foreign countries are not
preceded by words such as "made in" or "product of". It is
submitted that the origin indication satisfies the 19 CFR 134.46
requirement of "close proximity" (albeit on a different side of
the container), and that in any event the marking is in a
conspicuous location by virtue of the size of the type and
placement on the label.
For purposes of this ruling it is assumed that Brazil and
Colombia are the countries of origin of the instant coffee within
the meaning of 19 U.S.C. 1304 and 19 CFR 134.1.
ISSUES:
1) Is the marking conspicuous within the meaning of 19
U.S.C. 1304, Part 134, Customs Regulations, and in particular, 19
CFR 134.47?
2) Assuming this threshold is satisfied, is there an
additional requirement that the marking be in "close proximity"
to the references to "New Orleans" and "Louisiana" as required by
19 CFR 134.46?
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.
Part 134, Customs Regulations (19 CFR Part 134), implements
the country of origin marking requirements and exceptions of 19
U.S.C. 1304. Two provisions in the regulations address the
situation in which an article or its container bears a reference
to a country or locality other than the country of origin. 19
CFR 134.46 provides that in any case in which such a reference
appears, the name of the country of origin shall appear, legibly
and permanently, in close proximity to the reference and in
lettering of at least comparable size, and preceded by "Made in",
"Product of", or other words of similar meaning. 19 CFR 134.47
applies when the name of a country or locality other than the
country of origin appears as part of a trademark, trade name, or
souvenir marking. In such cases, the marking of the country of
origin must appear either in close proximity to the name in the
mark "or in some other conspicuous location". Lettering of at
least comparable size is not specifically required.
With respect to the imported instant coffee, both provisions
are applicable. The presence on the side panel of the jar of the
words "Distributed by Community Coffee Company, Inc. Baton Rouge,
LA" requires that, pursuant to 19 CFR 134.46, the names of the
countries of origin of the coffee appear in "close proximity" to
the name "Baton Rouge, LA". In the case of packaged articles,
Customs has generally ruled that "close proximity" means on the
same side or surface of of the package on which appears the
triggering name. See, HRL 708994 (April 24, 1978). With respect
to the jar, this requirement is satisfied. In addition, the
requirement that the lettering of the name of the country of
origin appear in lettering of at least comparable size is
satisfied by the lettering on this label.
The Louisiana-registered trademark "New Orleans Blend"
appears on the same side panel, and thus satisfies the "close
proximity" requirement of 19 CFR 134.46. The same name appears
on the front panel in larger lettering. However, insofar as 19
CFR 134.47 does not require lettering of comparable size or
"close proximity" for geographic references which appear as parts
of trademarks or trade names, but merely that the country of
origin be in a conspicuous location, the issue is whether it is
conspicuous for the country of origin to appear on a side panel
of the jar. In our opinion, the location is acceptable, in that
the marking may be found easily and read without strain. See, 19
CFR 134.41(b).
The label does not, however, satisfy the requirement set
forth in both 19 CFR 134.46 and 19 CFR 134.47 that the reference
to an article's country of origin be preceded by the words "Made
In", "Product of", or words to similar effect. It is the opinion
of this office that the phrase "blend of the world's finest
coffees, including Brazil and Colombia, with chicory from France"
does not provide the ultimate purchaser with a clear indication
of the origin of the article. The references to blending, and
the term "including", create considerable ambiguity with respect
to the countries of origin of the product. The possibility is
left open that the article may contain may contain substantial
amounts of coffee from locations other than Brazil and Colombia.
Notwithstanding this deficiency, we do not require at this
time that the label be corrected. Later this year Customs
intends to initiate a notice and comment proceeding to consider
the country of origin marking of coffee, including the amount of
processing which will effect a change in the country of origin of
a coffee product, e.g., the processing of soluble coffee into
agglomerated instant coffee, and the processing of coffee beans
by roasting. In view of this impending proceeding, we do not
object to the current use of this label, provided the product
does not include coffee from countries other than Brazil and
Colombia.
It is noted that the opposite side panel refers to the name
"Louisiana" in connection with a toll-free number which
purchasers are invited to use for questions and comments and
issues arising under the product's unconditional guarantee. In
previous rulings we have found that such references do not
trigger the requirements of 19 CFR 134.46 (assuming the article
is otherwise properly marked), in that there is no likelihood
that such a reference will mislead or deceive the ultimate
purchaser as to the origin of the article. See, HQ 732816
(November 24, 1989)(U.S. address for warranty information does
not trigger the "close proximity" and lettering of comparable
size requirements of 19 CFR 134.46). We find that the same
rationale applies to the reference to "Louisiana" in the instant
context.
HOLDING:
The location of the country of origin marking on the side of
the coffee jar whose front bears the trademarked name "New
Orleans blend" satisfies the requirements of 19 CFR 134.47. The
location of the country of origin marking satisfies the
requirements of 19 CFR 134.46 with respect to the other
references on the jar to places other than the country of origin.
The label does not satisfy the requirements of both 19 CFR 134.46
and 19 CFR 134.47 with respect to the wording of the indication
of origin. The words "Made In", or "Product of" or words to
similar effect do not appear. For the reasons set forth above,
the importer is not required to correct the deficiency at this
time.
Sincerely,
John Durant
Director, Commercial
Rulings Division