Request for a ruling regarding the country of origin marking of various backpacks, fanny packs and duffel bags; tags; 19 CFR §134.46; 19 CFR §134.47; evidence of trademark recordation; conspicuous location

HQ 561260 June 18, 1999 MAR05 RR:CR:SM 561260 MFC CATEGORY: Marking Steven B. Zisser, Esq. Law Office, Suite 34 2155 Paseo De Las Americas San Diego, CA 92173 RE: Request for a ruling regarding the country of origin marking of various backpacks, fanny packs and duffel bags; tags; 19 CFR §134.46; 19 CFR §134.47; evidence of trademark recordation; conspicuous location Dear Mr. Zisser: This is in response to your letter dated January 7, 1999, and subsequent submission June 17, 1999, on behalf of Outdoor Recreation Group (“Outdoor”), which requests a binding ruling regarding the proposed country of origin marking for various backpacks, fanny packs and duffel bags using tags. Four samples of the proposed tag labels have been submitted for our consideration. FACTS: Outdoor is an established manufacturer and distributor of outdoor products, including backpacks, fanny packs, duffel bags, and accessories. The company produces a line of products under the “Fieldline” label. The subject merchandise is stated to be produced in Mexico of U.S. parts and is entered under Subheading 9802.00.90, Harmonized Tariff Schedule of the United States (HTSUS). Each product will contain a sewn-in label which identifies the origin “Assembled in Mexico with U.S. Made Components.” Additionally, the company proposes to attach a rigid paper tag to each product. The front side of the tag is printed with the trademarks “Fieldline” and “America’s Finest Outfitter.?” The backside of each tag is printed with a detailed description of the product, the company’s U.S. address, and the origin designation, “Assembled in Mexico With U.S. Made Components.” Outdoor has been consistently using the trademark “America’s Finest Outfitter” since June 1991. On November 10, 1998, Outdoor filed an application with the U.S. Patent and Trademark Office (“PTO”) to officially register the mark. ISSUE: Whether the proposed country of origin marking 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 United States shall be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the article (or its container) will permit, in such a manner as to indicate to the ultimate purchaser in the United States the English name of the country of origin of the article. By enacting 19 U.S.C. §1304, Congress intended to ensure that the ultimate purchaser would know the country of origin of the goods by inspecting the marking on the imported goods. 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. United States v. Friedlaender & Co., 27 C.C.P.A. 297, 302 C.A.D. 104 (1940). Part 134 implements the country of origin marking requirements and exceptions to 19 U.S.C. §1304. According to 19 CFR §134.41, the country of origin marking is considered to be conspicuous if the ultimate purchaser in the United States is able to find the marking easily and read it without strain. The degree of permanence of the marking should be at least sufficient to insure that in any reasonably foreseeable circumstance, the marking shall remain on the article until it reaches the ultimate purchaser unless it is deliberately removed. The marking must survive normal distribution and store handling. Section 134.47, provides that when as part of a trademark or trade name or as part of a souvenir marking, the name of a location in the U.S. appears, the article shall be legibly, conspicuously, and permanently marked to indicate the name of the country of origin of the article preceded by the words “Made in,” “Product of,” or other similar words, in close proximity or in some other conspicuous location. The purpose of this provision is to prevent the ultimate purchaser from being misled or deceived when the name of a country or place other than the country of origin appears on an imported article or its container. This provision is triggered by the use of the phrase “America’s Finest Outfitter,” which appears on the front side of the label. Although 19 CFR §134.47 applies when a locality reference appears as part of a trademark, Customs has accepted a filed application with the U.S. Patent and Trademark Office as sufficient evidence of a trademark for purposes of 19 CFR §134.47 because the regulation does not specify what evidence is needed to establish a trademark. See Headquarters Ruling Letter (“HRL”) 560806 (March 19, 1998) and HRL 560791 (April 29, 1998).  You have presented evidence that an application for the trademark “America’s Finest Outfitter” was filed with the U.S. Patent and Trademark Office on November 10, 1998. Therefore, Customs finds that the more lenient requirements of 19 CFR §134.47 apply. Consequently, the country of origin need appear in close proximity or “in some other conspicuous location” to the non-origin reference preceded by words such as “Made in” or “Product of.” On the sample tag submitted for our consideration, the country of origin marking “Assembled in Mexico With U.S. Made Components” is printed on the back of the tag in the lower left corner of the label, underneath the U.S. address and next to the Fieldline Logo, which has “America’s Finest Outfitter” printed beneath. Although the font used to print the country of origin marking is smaller than the surrounding type, the marking is separated from the other product information in such a way that it is easily located. Accordingly, we find that the sample satisfies the requirements of 19 CFR §134.47. HOLDING: The phrase “America’s Finest Outfitter” on the front side of a tag attached to the subject merchandise triggers the requirements of 19 CFR §134.47. However, we find that the country of origin marking, “Assembled in Mexico With U.S. Made Components” printed on the back of the tag in the lower left corner of the tag satisfies the requirements of 19 CFR §134.47 and 19 U.S.C. §1304. 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