MAR 2-05 CO:R:C:V 735213 LR
Paul E. Linet, Esq.
60 Massachusetts Avenue
Suite 105
Acton, MA 01720
RE: Country of origin marking of packaging; designed in U.S.A.;
American flag; conspicuous; 19 CFR 134.46
Dear Mr. Linet:
This is in response to your letter dated June 9, 1993, on
behalf of Tru-Fit Marketing Corp ("Tru-Fit"), requesting a ruling
regarding the country of marking of certain retail packages.
FACTS:
Tru-Fit is considering imported finished neoprene consumer
items. These items will be designed in the United States and made
in China. In their imported condition, these items will be packed
ready for sale at the retail level. The retail packaging in which
the imported items will be displayed will depict a red, white and
blue flag that resembles the flag of the United States. The flag
measures approximately 9/16 inches x 5/16 inches. The word
"Designed" is displayed immediately above the flag in capital
letters of approximately 5 point type (a point is a unit of
measurement approximately equal to .01384 inches or nearly 1/72
inch and all type sizes are multiples of this unit). The words "in
USA" are displayed immediately below the flag in the same size
capital letters. Approximately 1/4 inch below the flag, the words
"Made in China" are displayed in capital letters of the same size.
All the lettering is black on a white background. A sample label
was submitted depicting this information. Also contained on the
label is information about the product, the company name, and
cleaning instructions. There is no indication where this label will
appear on the retail package.
ISSUE:
Whether the submitted label satisfies 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 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.
With regard to the conspicuousness and legibility requirements,
section 134.41(b) requires that the country of origin marking be
such that the ultimate purchaser is able to find the marking easily
and read it without strain.
Articles for which the marking of the containers will
reasonably indicate their origin are excepted from individual
marking under 19 U.S.C. 1304(a)(3)(D) and 19 CFR 134.32(d). This
exception applies only if the article in question is imported in
a properly marked container and Customs is satisfied that the
article will reach the ultimate purchaser in this original marked
unopened container. Without an actual sample of the packaged
product, we cannot determine whether this exception is applicable.
Therefore, this ruling will address only the question of whether
the marking on the label is satisfactory.
The Customs Service has recognized that the presence of a
geographic location other than the country in which the article
was produced on an imported article or its container may mislead
the ultimate purchaser as to the true country of origin. Thus, in
cases where words indicating possible origin other than the actual
country of origin appear on the article, Customs requires that the
country of origin marking shall appear in close proximity to and
in at least comparable size letters to such words, and preceded by
"Made in," "Product of," or other words of similar meaning. (See
19 CFR 134.46). The purpose of this regulation is to alleviate the
possible confusion that is created by these words.
Customs has also determined that the presence of symbols
associated with a country other than the country of origin may also
mislead the ultimate purchaser as to the country of origin. This
is especially true where the foreign symbols are more readily
visible than the country of origin marking. Thus, in a ruling
regarding shoes, where the shoes and the boxes prominently
displayed several references to the United States, including a
reproduction of the American flag as its lid, Customs determined
that the country of origin marking on the inside of the heel of
the shoe and on the bottom of the box was not conspicuous. See
Headqaurters Ruling Letter (HRL) 729096, January 2, 1986.
In this case, the above described label satisfies the
requirements of 19 CFR 134.46 since the country of origin is
preceded by "Made in" and appears in close proximity and in
comparable size letters at the words "Designed in U.S.A.". The
only issue which remains is whether the country of origin marking
is conspicuous in light of the depiction of the U.S. flag.
In HRL 733940, October 24, 1991, concerning the country of
origin marking of pens, Customs announced various factors that
should be considered in determining whether a particular country
of origin marking is conspicuous within the meaning of 19 U.S.C.
1304 and 19 CFR 134.41. These factors include the size of the
marking, the location of the marking, whether it stands out, and
the legibility of the marking. In this regard, the ruling states
that:
the size of the marking should be large enough so that the
ultimate purchasers can easily see it without strain. The
location of the marking should be in a place where the
ultimate purchaser could expect to find the marking or where
he/she could easily notice it from a casual inspection.
Whether the marking stands out is dependent on where it
appears in relationship to other print on the article and
whether it is in contrasting letters to the background. The
legibility of the marking concerns the clarity of the letters
and whether the ultimate purchaser could read the letters of
the marking without strain. No single factor should be
considered conclusive by itself. Instead, it is the
combination of these factors which determines whether the
marking is acceptable. In some cases, a marking may be
unacceptable even when it is in a large size because the
letters are too hard to read or it is in a location where it
would not be easily noticed. In other cases, even if the
marking is small, the use of contrasting colors, which make
the letters particularly stand out, could compensate to make
the marking acceptable.
Applying these factors to the country of origin marking on
the label, we find that the marking is acceptable. The "Made in
China" marking appears in distinct capital letters that stand out
from the white background. Unlike the boxes in 729096, which
displayed a reproduction of the American flag as its entire lid,
the flag here is relatively small. Moreover, the country of origin
appears immediately below the flag in clear, readable black letters
which stand out from its white background. We believe that any
consumer who views the flag will also read the country of origin
label. Therefore, the possibility for confusion is eliminated.
In light of the above considerations, we find that the
submitted label is marked in a conspicuous manner and satisfies
the requirements of 19 U.S.C. 1304 and 19 CFR 134.41(b) and 134.46.
Assuming the label is securely affixed in a conspicuous location
and the contents otherwise satisfy the marking requirements, the
marking is acceptable.
HOLDING:
The country of origin marking on the labels as described above
satisfies the requirements of 19 U.S.C. 1304 and 19 CFR Part 134.
Sincerely,
John Durant, Director