MAR-2-05 CO:R:C:V 734095 AT
William D. Outman, II, Esq.
Baker & McKenzie
815 Connecticut Avenue, N.W.
Washington, D.C. 20006-4078
RE: Country of origin marking of transesophageal imaging
transducers ("T-Probes") imported from Holland and made with U.S.
component; clearly indicate country of origin; 19 U.S.C. 1304;
15 U.S.C. 1124; confusing/deceptive country of origin marking; HQ
733266; HQ 733981; American Burtonizing Co. v.
United States
Dear Mr. Outman:
This is in response to your letters dated March 21, 1991 and
June 20, 1991, on behalf of Hewlett Packard Company (Hewlett
Packard) requesting a binding and prospective ruling on the
country of origin marking of T-Probes imported from Holland. A
sample T-Probe in its case was shown to us during a meeting. For
purposes of this ruling, it is assumed that the country of origin
of the T-Probe is Holland.
FACTS:
Hewlett Packard imports medical testing devices called T-
Probes from Holland. As imported, the T-Probe contains two
different country of origin markings: A "Made in Holland"
marking and a "Made in USA" marking. The "Made in Holland"
marking clearly appears in large letters on a metal plate affixed
to the connecting element of the device (the connector). The
plate also provides technical data and care instructions. The
"Made in USA" marking is molded into the plastic housing of the
gastroscope component of the T-Probe. The U.S. marking is less
readily apparent than the "Made in Holland" marking on the metal
plate; however, it can be readily seen if one was to examine the
T-Probe.
The sample T-Probe you showed us was presented in a carrying
case. You indicated that the T-Probe is both imported and sold
in this case. When the case was opened, the "Made in Holland"
serial plate on the connector was in plain view and the "Made in
USA" marking is hidden from view. In order to see the "Made in
USA" marking, the T-Probe must be removed from the case.
You indicate that the gastroscope, the component on which
the "Made in USA" marking appears, is manufactured in the U.S.
and that the marking is molded into the plastic housing at the
time of manufacture. You further indicate that this marking is
the standard marking applied by the U.S. manufacturer both to the
gastroscope it sells to the medical industry as "stand-alone"
units or for "further fabrication" into integrated medical
systems as in this case. You claim that if the foreign
manufacturer of the T-Probes was to remove the "Made in USA"
marking, it could cause damage to the delicate electronics in the
unit itself. You also claim that sales to Hewlett Packard are
not of sufficient volume to warrant the U.S. manufacturer to
modify its manufacturing process to remove the "Made in USA"
marking from the housing.
You claim that deception plays no role in the marketing,
purchase or use of the T-Probe. If one examines the unit and is
interested in ascertaining the country of origin of the article
he will find the words "Made in Holland" in plain view on the
exposed surface of the serial plate of the connector. In
contrast, the gastroscope has to be removed from the case and
positioned at just the right angle for the eye to perceive the
words molded in the plastic housing. Assuming the words were to
be noted, you claim that it is simply not credible to suggest one
would be confused, or even worse convinced after seeing what was
difficult to view, that the other patently obvious representation
must be incorrect. Therefore, you contend that the marking on
the T-Probes clearly satisfies the country of origin marking
requirements and there is nothing misleading or deceptive in the
use in this context of the gastroscope which is also properly
marked with its particular country of origin.
Finally, you contend that country of origin is not a fact
influencing the purchasing decision nor has there been any report
of confusion over the country of origin. You indicate that the
T-probes are marketed by Hewlett Packard through its own sales
force which are all highly-educated professionals. Some have
engineering backgrounds while others have medical qualifications
such as sonography training or clinical experience using
sonographic imaging. These sales personnel call on
cardiologists, anesthesiologists and other professionals
typically attached to an echo laboratory in a hospital or medical
clinic. Further, the product itself is not a device purchased by
the masses or the uninformed. The units are extremely expensive
(about $30,000) and are only purchased by users having the
educational levels and backgrounds that permit them to make
informed purchasing decisions.
ISSUE:
Whether the marking "Made In Holland" printed on the serial
plate attached to the connector satisfies the marking require-
ments of 19 U.S.C. 1304.
Whether the marking "Made in U.S.A." which appears on a U.S.
component of the T-Probe violates 15 U.S.C. 1124.
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 (emphasis
added). The Court of International Trade stated in Koru North
America v. United States, 701 F.Supp. 229 (1988): "In
ascertaining what constitutes the country of origin under the
marking statute, a court must look at the sense in which the term
is used in the statute, giving reference to the purpose of the
particular legislation involved." The purpose of the marking
statute is outlined in United States v. Friedlaender & Co., 27
C.C.P.A. 297 at 302, C.A.D. 104 (1940): "Congress intended 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."
With regard to the requirement to indicate the country of
origin, the Court of Customs Appeals has stated:
Obviously, the purpose of section 304, which goes
into great detail as to how the marking shall be
done, was to require a marking such as would be
understood by purchasers of foreign-made goods as
giving definite and reliable information as to the
country of origin. It is not reasonable to suppose
that Congress, by the use of the word "indicate"
meant only that the words used should hint at the
country of origin. The object sought to be obtain-
ed by the legislature could best be obtained by an
indication which was clear, plain, an unambiguous
and which did more than merely hint at the country
of origin (original emphasis added).
American Burtonizing Co. v. United States, 13 Ct. Cust. Appls.
652, T.D. 41489 (1926).
The first question presented in this case, is whether the
marking "Made in Holland" printed on the connector satisfies the
marking requirements of section 1304 when the marking "Made in
U.S.A." appears on the plastic housing. We find that it does
not. Although the country of origin marking "Made in Holland"
would satisfy section 1304 if it was the only marking on the
article, in this case, two country of origin markings exist on
the T-Probe, a "Made in Holland" marking on the connector, and a
"Made in U.S.A. marking on the gastroscope. If an ultimate
purchaser was to examine the article, the country of origin of
the article is not clear, plain, or unambiguous, and the marking
"Made in Holland" does not indicate the country of origin as
required by 19 U.S.C. 1304.
Customs considered a similar question in HQ 733266 (August
15, 1990) regarding the country of origin marking of engines from
Brazil which were comprised of several component parts which
were manufactured in various countries other than Brazil. The
component parts of the engine were marked with the country of
origin from where they originated. In Brazil, these component
parts were used in the manufacture of the engines. The country
of origin marking of the components remained visible on the
finished engine. A metal data plate containing pertinent
information on the engine was permanently affixed to the finished
engine. On the metal data plate, "Manufactured by Cummins
Brazil S.A." was inscribed. Customs determined that the various
markings on the engine would be confusing to the ultimate
purchaser and that the engines were not marked in accordance with
the requirements of 19 U.S.C. 1304. In order to satisfy the
requirements of 19 U.S.C. 1304 to indicate the country of origin,
Customs found that the engine should be conspicuously marked
"Engine made in Brazil" and that an additional explanation was
necessary to clarify that the country marking on the components
referred only to the country of origin of the components (e.g.
"Engine Made in Brazil- Country of Origin of Component Parts as
Marked").
We disagree with your claim that due to the fact that the
T-probes are extremely expensive and are purchased by users
having the educational levels and backgrounds that permit them to
make informed purchasing decisions that clear country of origin
marking is not required. The fact still remains that since the
imported article is of foreign origin it must comply with the
marking requirements of section 1304 irrespective of the value of
the article or the educational level and background of the
ultimate purchaser. As stated above, two country of origin
markings exist on the T-Probe making it unclear and ambiguous as
to what is the true country of origin of the article.
Two alternative methods are available to bring the imported
product into compliance with the requirements of 19 U.S.C. 1304.
First, the "Made in U.S.A." marking on the gastroscope could be
permanently obliterated or concealed in some fashion which would
provide the ultimate purchaser with a clear and unambiguous
indication as to what is the true country of origin of the T-
Probe satisfying the marking requirements of section 1304.
Alternatively, an additional explanation could be placed on the
serial plate to clarify that the U.S. marking on the gastroscope
refers only to the country of origin of the gastroscope. For
example, the serial plate could read "Made in Holland-
Gastroscope Component Made in U.S." This would be an acceptable
way to mark the T-Probes since the country of origin would be
clear, plain and unambiguous to the ultimate purchaser upon
examination of the article. Customs has allowed this type of
modified country of origin marking in the past to clarify the
true country of origin to the ultimate purchaser. In HQ 733981
(June 3, 1991), Customs ruled that imported subassemblies made in
Mexico with switches made in the U.S. and bearing a "Made in USA"
marking were not excepted from marking under 19 CFR 134.35 or 19
CFR 134.32(h). In addition, Customs stated that in order to
comply with the requirements of 19 U.S.C. 1304, the switches had
to marked in a manner which clearly indicated that the country of
origin was Mexico and that only the switch was of U.S. origin
(e.g. "Assembled in Mexico"; "Switch Made in USA"). See also HQ
733266, supra.
The second question presented in this case is whether the
marking "Made in U.S.A." printed on the U.S. made gastroscope
component of the completed T-Probe also marked "Made in Holland"
is in violation of 15 U.S.C. 1124.
This section provides in pertinent part that imported
merchandise which "shall bear a name or mark calculated to induce
the public to believe that the article is manufactured in the
United States . . . shall not be admitted to entry." Whether
merchandise is violative of this provision must be decided on a
case-by-case basis and the totality of the circumstances
presented in the specific case must be taken into account. While
there is no general test to be applied, in this case we find that
the USA mark is not calculated to induce the public to believe
that the T-Probe was made in the United States based on the
following: 1) the "Made in USA" mark appears on a U.S. made
component and such mark was affixed at the time the component was
manufactured; 2) the "Made in USA" mark is the standard mark used
by the U.S. manufacturer; 3) the T-Probe is conspicuously marked
"Made in Holland" on the serial plate; and 4) the "Made in
Holland" on the serial plate of the T-Probe is more readily
apparent than the "Made in USA" mark on the housing of the
gastroscope.
HOLDING:
Because of the "Made in U.S.A." marking on one of the
components of the T-Probe, the country of origin marking "Made in
Holland" printed on the serial plate attached to the connector
does not give the ultimate purchaser a clear, plain and
unambiguous indication of the country of origin of the T-Probes.
In order to satisfy the requirement of 19 U.S.C. 1304 to indicate
the country of origin, additional information is necessary to
clarify that the T-Probe is made in Holland and only the
gastroscope component is made in the U.S. A marking such as "T-
Probe Made in Holland-Gastroscope Component Made in U.S." or
removal of the "Made in U.S.A." marking on the gastroscope is
required.
For the reasons stated above, the "Made in U.S.A." marking
on the U.S. component of the T-Probe is not in violation of 15
U.S.C. 1124.
Sincerely,
John Durant, Director
Commercial Rulings Division