Country of origin marking for t-shirts; conspicuous; "U.S.A." part of design.

HQ 735473 May 19, 1994 MAR-2-05 CO:R:C:V 735473 RC CATEGORY: MARKING Mr. James F. O'Hara, Esq. Stein, Shostak, Shostak & O'Hara 3580 Wilshire Boulevard Los Angeles, California 90010-2597 RE: Country of origin marking for t-shirts; conspicuous; "U.S.A." part of design. Dear Mr. O'Hara: This is in response to your letter of January 6, 1994, in which you requested a country of origin marking ruling for t-shirts made in Hong Kong and imported into the U.S. for sale. This ruling addresses only the country of origin marking issues raised by your submission. It is not an endorsement of the trade name "Boss America"; we cannot determine whether the mark "Boss America" would constitute an infringement of any validly registered U.S. trademark. In any event, written consent from the domestic owner of trademark, indicating your authority to use the mark or to import goods bearing the mark will provide an exception to the restriction. FACTS: Your client, Boss Sportswear (U.S.A), Inc., dba Boss America, intends to import t-shirts manufactured in Hong Kong for sale in the U.S. The submitted t-shirt is emblazoned with the letters "U.S.A." on the front in large letters. The words "Boss America" are superimposed on the "U.S.A." letters. You state that the t-shirts are souvenirs and that "Boss America" is a trade name. At the nape of the neck are three sewn-in labels, one states "Boss America", a second indicates the size "L", and a third states: 100% COTTON, RN 83174, MADE IN HONG KONG, CARE ON REVERSE. ISSUE: Whether the country of origin marking appears is conspicuous as set forth under 19 U.S.C. 1304. LAW AND ANALYSIS: Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304), requires that articles of foreign origin or their containers be marked in a conspicuous place legibly, indelibly, and permanently to indicate to the ultimate purchaser 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. The "country of origin" for marking purposes is defined, in section 19 CFR 134.1(b), to mean the country of manufacture, production, or growth of any article of foreign origin entering the U.S. The "ultimate purchaser" is generally defined, in section 19 CFR 134.1(d), as the last person in the United States who will receive the article in the form in which it was imported. Section 134.46, Customs Regulations (19 CFR 134.46), provides in relevant part that when letters or words indicating the name of a country or locality other than the country of origin appears on an article, the name of the country of origin must appear "in at least comparable size" and "in close proximity" to such letters or words. Section 134.47, Customs Regulations (19 CFR 134.47), creates a limited exception to this requirement by providing that for souvenirs and articles marked with trademarks and trade names, the marking of the country of origin may appear either "in close proximity or in some other conspicuous location" and must be preceded by the "Made in", "Product of", or similar words. Customs has previously ruled that when "USA" is part of a garment's design, as in the case here, the regulations of 19 CFR 134.46 and 19 CFR 134.47 are not triggered. See HQ 723604 (November 3, 1983)("USA" letters on men's swim trunks did not trigger the marking requirements of 19 CFR 134.46 because the marking was used as a symbol or decoration and would not be reasonably construed as indicating the country of origin of the article.) Therefore, the country of origin marking is acceptable provided it appears in a conspicuous location and is legible and permanent. As provided in 19 CFR 134.41, the ultimate purchaser must be able to easily find the country of origin and read it without strain. Customs requires the country of origin marking to appear at the nape of the neck for garment tops. Here, the country of origin marking appears at the nape of the neck on a sewn-in label. It is in close proximity to the size and textile fiber disclosure statement. Thus, the country of origin marking appears in a conspicuous location, permanent, and legible. In sum, the country of origin marking meets the conspicuousness requirement set forth under 19 U.S.C. 1304. Additionally, you should consult the Federal Trade Commission (FTC) before you employ the "U.S.A." or "America" language. The "U.S.A." or "America" marking on an article of foreign origin may violate laws administered by the FTC. HOLDING: The country of origin marking "MADE IN HONG KONG" meets the requirements set forth under 19 CFR Part 134 and 19 U.S.C. 1304. Sincerely, John Durant, Director Commercial Rulings Division