MAR-2-05 CO:R:C:V 734245
Allan H. Kamnitz, Esq.
Sharretts, Paley, Carter & Blauvelt, P.C.
67 Broad Street
New York, NY 10004
RE: Country of Origin Marking - Toy Car Replicas; Conspicuous
Place; 19 CFR 134.46; 19 CFR 134.47; NY Ruling 863533
Modified.
Dear Mr. Kamnitz:
This is in response to your submissions of July 1, 1991, and
January 17, 1992, on behalf of the Ertl Company regarding its
line of toy cars sold under the "American Muscle" trademark.
FACTS:
The toy cars are made in China. Although the cars are so
marked, their packaging effectively prevents casual inspection
for country of origin marking. Thus, it is the marking of the
package which must satisfy the country of origin marking
requirements for the article. As packaged, the car is mounted on
a pedestal within a box, five sides of which display the
trademark "American Muscle" in prominent lettering. The country
of origin is marked by the words "Made in China" rendered in
lettering approximately 1/8" high on the bottom of the box.
A ruling on classification of the article issued by the Area
Director, New York Seaport (NY 863533, June 14, 1991), examined
the marking of the article and found it deficient. It is
apparent that this portion of the ruling relied upon 19 CFR
134.46, which provides that in any case in which a reference to a
country or geographic location other than the country of origin
appears on an imported article or its container, the name of the
actual country of origin must appear in close proximity to such
reference. The ruling stated that the name of the car's country
of origin, China, must appear directly above, below, or next to
the words "American Muscle" in each instance in which it is used.
This would require the country of origin to appear on all six
sides of the box.
You have asked this office to review the New York
determination. Pursuant to our consideration of this issue, a
sample package with revised marking has been offered, upon which
the words, "Made in China" are printed on the front of the
package below the cellophane display window. Specifically, this
marking is located in the lower right hand corner of the
package's front panel in white lettering approximately 1/2" high
against a black background. At a conference at Customs
Headquarters on January 9, 1992, you indicated that if this
revised marking was acceptable to Customs, Ertl would begin using
it immediately.
ISSUE:
Does the proposed marking of the package containing the Ertl
"American Muscle" car satisfy the country of origin marking
requirements?
LAW AND ANALYSIS:
Pursuant to section 304 of the Tariff Act of 1930, as
amended (19 U.S.C. 1304), every article of foreign origin
imported into the U.S. must be marked in a conspicuous place with
the English name of its country of origin. As set forth in the
implementing regulations, Part 134, Customs Regulations (19 CFR
Part 134), the ultimate purchaser must be able to find the
marking easily and read it without strain. 19 CFR 134.41(b).
Upon examination of the original sample packaging this
office agrees with the Area Director, New York Seaport, that the
marking on the bottom of the package was insufficient. However,
we do not agree that the presence of the name, "American Muscle"
triggers the requirements of 19 CFR 134.46, such that the name of
the toy's country of origin must appear in close proximity on the
package to each use of the name "American Muscle" and in
lettering of comparable size.
In the opinion of this office, the applicable rule in this
circumstance is set forth at 19 CFR 134.47, because "American
Muscle" is a trademark registered with the U.S. Patent and
Trademark Office. As provided in 19 CFR 134.47, when the name of
a location other than the country of origin appears as part of a
trademark or trade name or as part of a souvenir marking, the
marking of country of origin must appear in close proximity to
the trademark "or in some other conspicuous location". That is,
marking dictated by 19 CFR 134.47 is not strictly subject to the
"close proximity" and "lettering of comparable size" requirements
set forth in 19 CFR 134.46, but may be placed instead in a
location which is conspicuous under the circumstances.
Here, this office finds that the corrected marking on the
sample packaging is in a conspicuous location within the meaning
of 19 CFR 134,47. This marking is easily found and read without
strain, which makes the numerous references to "American Muscle"
acceptable without additional marking. Accordingly, New York
Ruling 863533 is modified such that the marking on the front of
the packaging containing the Ertl "American Muscle" toy car is
acceptable, and no additional marking is required.
HOLDING:
Marking on the front of the package as demonstrated on the
sample package is acceptable under 19 CFR 134.47. New York
Ruling 863533 is modified accordingly.
Sincerely,
John Durant
Director, Commercial
Rulings Division
cc: Area Director
New York Seaport