Country of origin marking requirements for footwear; 19 CFR 134.46

HQ 561213 February 16, 1999 MAR-05 RR:CR:SM 561213 RSD CATEGORY: MARKING Stephen S. Spraitzar, Esq. Law Offices of George R. Tuttle Three Embarcadero Center 1160 San Francisco, California 94111 RE: Country of origin marking requirements for footwear; 19 CFR 134.46 Dear Mr. Spraitzar: This is in response to your letter dated November 5, 1998, requesting an information letter on behalf of Asics Tiger Corporation (Asics), regarding the country of origin marking requirements for footwear style GEL-MCRS which Asics intends to import. Although you have requested an information letter, in order to permit Asics to be able to rely on the analysis set forth below in its future transactions with the Customs Service, we have concluded that a binding ruling would be a more appropriate response to your request. We have received a sample of the footwear that Asics intends to import. FACTS: Asics, located in Fountain Valley, California, is planning to import athletic footwear from China. The footwear will be sold to the United States Marine Corps for distribution free of charge to its recruits. The shoes will be imported for sale exclusively to the U.S. Marine Corps, and will not be sold in the Marine Corps’ Pxs. The sample shoe is khaki colored with extensive black trim. The sample includes a label sewn on the underside of the tongue, which indicates “MADE IN TAIWAN”. However, you state that the actual production models will be made in China and will be so marked. The label on the tongue also indicates the size of the footwear. The sample footwear contains a patch on the topside of the tongue. This patch includes the initials “U.S.M.C.” with the words “Iwo Jima 1945.” There is also an image of a famous photograph from World War II involving US Marines raising an American flag on Iwo Jima. This scene includes the image of a flag, but the flag is not colored.  ISSUE: Whether the special marking requirements of 19 CFR 134.46 are triggered by the reference “U.S.M.C.” printed on a patch on the top of the tongue of the imported footwear. 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. Congressional intent in enacting 19 U.S.C. §1304 was 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. Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. §1304. Section 134.46, Customs Regulations (19 CFR §134.46) contains more restrictive marking requirements designed to alleviate the possibility of misleading an ultimate purchaser with regard to the country of origin of an imported article. Section 134.46 provides that: In any case in which the words “United States,” or “American,” the letters “U.S.A.,” any variation of such words or letters, or the name of any city or location in the United States, or the name of any foreign country or locality other than the country or locality in which the article was manufactured or produced appear on an imported article or its container, and those words, letters or names may mislead or deceive the ultimate purchaser as to the actual country of origin of the article, there shall appear legibly and permanently in close proximity to such words, letters or name, and in at least a comparable size, the name of the country of origin preceded by “Made in,” “Product of,” or other words of similar meaning. Therefore, under section 134.46, the threshold determination in ascertaining the applicability of the stricter requirements is whether the U.S.M.C. reference may deceive or mislead the ultimate purchaser regarding the country of origin of the footwear. Customs has held that, under certain conditions, non-origin geographical references appearing in connection with imported articles do not necessarily trigger the requirements of 19 CFR §134.46 if the context in which the names are used is such that confusion by the ultimate purchaser regarding country of origin is unlikely (See Customs Service Decision (C.S.D.) 9031, dated December 20, 1989). In Headquarters Ruling Letter (HRL) 732329, dated July 12, 1989, Customs held that an address on a warranty card did not pose a risk of confusion to ultimate purchasers. In HRL 732816, dated November 24, 1989, Customs held that an address provided for guarantee inquiries, printed on the reverse side of a display ticket, would not be likely to confuse or deceive ultimate purchasers as to the actual origin of the article. In HRL 559626, dated October 17, 1996, Customs held that the name and address of a school printed in a spiral student agenda notebook was not misleading because the articles would be purchased by students, who would understand that their school address does not relate to the origin of the planner. In another case, the phrasing of the nonorigin geographical reference itself was found to alleviate potential customer confusion. In HRL 559267, dated October 20, 1995, Customs considered imported ceramic coffee canisters sold exclusively by mail order either as a promotional item to first time coffee purchasers, or by mail order offered from a catalogue. Customs determined that an ultimate purchaser of the coffee and coffee canisters would understand that “By Appointment to His Majesty The King of Sweden” referred not to the canister but to the coffee contained therein, and that an ultimate purchaser would not confuse the reference to the King of Sweden as information concerning the origin of the canister. In other instances, Customs has determined that the likelihood of consumer confusion is alleviated by the appearance of the nonorigin geographical reference as a decorative design or symbol. In HRL 732412, dated August 29, 1989, Customs found that the placement of the word "Kansas" on different parts of imported jeans did not trigger the requirements of 19 CFR §134.46 because such marking was used as a symbol or decoration and would not reasonably be construed as indicating the origin of the article on which it appeared. Likewise, in HRL 723604, dated November 3, 1983, Customs found that the letters "USA" on men's bikinistyle swimming trunks did not trigger the marking requirements of 19 CFR §134.46 because such marking was used as a symbol or decoration and would not reasonably be construed as indicating the country of origin of the article. In HRL 733695, dated January 15, 1991, women's trousers with metal rivets diestamped with the words "Bonjour Paris", and containing a fabric label sewn into the waistband indicating the country of origin as Hong Kong, were not subject to the requirements of 19 CFR §134.46 since the rivets were decoration on the garment and an integral part of the design. Customs has also determined whether the use of a nonorigin geographical reference is misleading or confusing by considering the nature of the article upon which it appears. In HRL 559510, dated February 27, 1996, Customs held that the requirements of 19 CFR 134.46 were triggered by the phrase “Printed in U.S.A.” on video sleeves containing imported video cassettes because the words “Printed in U.S.A.” could be interpreted as referring to the video cassette and not the video sleeve. In HRL 733259, dated August 3, 1990, Customs found that four patches respectively indicating “St. Moritz”, “Tahiti”, “Rome”, and “Alaska” sewn onto the front of a child’s pullover knit top were an integral part of the design of the garment and not indicators of the origin of the garment. Since the top was conspicuously marked in the center of the neck by means of a sewn-in fabric label that satisfied the requirements of 19 U.S.C. 1304, Customs determined that the special requirements of 19 CFR 134.46 were not triggered. In 733795, dated February 15, 1991, Customs held that where a U.S. flag and/or the Statue of Liberty were used as an integral part of the design of a garment, the requirements of 19 CFR 134.46 were not triggered because these symbols were not indicators of the country of origin of the garments and the garments were otherwise conspicuously and legibly marked with their actual country of origin. In this instance, we believe that like the patches described in HRL 733259, the sewn-in patch on the top of the footwear’s tongue with the reference “U.S.M.C.” is a symbol or a part of the decoration of the footwear. The patch depicts a famous photograph involving the raising of the U.S. flag by U.S. Marines at the battle of Iwo Jima during World War II. We believe that an ultimate purchaser of the footwear will immediately recognize this famous picture from the battle of Iwo Jima. Consequently, the “U.S.M.C.” reference will not mislead the ultimate purchaser regarding the origin of the footwear because it will be understood that the “U.S.M.C.” is a reference to the United States Marine Corps and does not pertain to the country of origin of the shoes. This is especially the case because the footwear will be sold only to the Marine Corps for distribution to its recruits. In addition, the sample of the shoe is conspicuously marked with the country of origin in a location where the ultimate purchaser would expect to find important information regarding the shoes--on a sewn-in label on the underside of the tongue near the size information. Therefore, we find that the reference to “U.S.M.C.” on the footwear does not trigger the special marking requirements of 19 CFR 134.46. The country of origin marking as demonstrated by the sample shoe (assuming it will reflect China as the country of origin) satisfies the requirements of 19 U.S.C. 1304. HOLDING: The reference to “U.S.M.C.” on the patch on the tongue of the footwear does not trigger the special marking requirement of 19 CFR 134.46. The proposed country of origin marking as shown on the sample footwear (assuming “Taiwan” will be replaced by “China”) meets the requirements of the country of origin marking law. A copy of this ruling letter should be attached to the entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction. Sincerely, John Durant, Director Commercial Rulings Division