COUNTRY OF ORIGIN MARKING OF IMPORTED PLASTIC BASEBALL BATS

N258862 November 25, 2014 MAR-2 OT:RR:NC:N4:424 CATEGORY: MARKING Ms. Debbie Brule Global Transportation Services, Inc. 18209 80th Ave So, Suite A Kent, WA 98032 RE: COUNTRY OF ORIGIN MARKING OF IMPORTED PLASTIC BASEBALL BATS Dear Ms. Brule: This is in response to your letter dated October 30, 2014, on behalf of Associated Premium Corp., requesting a ruling on whether the proposed method of marking a children’s plastic baseball bat which contains a U.S. locality as well as the phrase “Made in the U.S.A.” in a sponsor’s trademark is an acceptable country of origin marking. The actual country of origin of the bats is China. A photograph of the proposed marking on the bat was submitted with your letter for review.
The plastic baseball bats are imported by the IronPiglets Kid Club which is associated with the Lehigh Valley IronPigs minor league baseball team. One side of the barrel of each bat will be printed with three logos: IronPiglets, Peeps and Company and Louisville Slugger. Your proposed marking inquiry involves the use of the Louisville Slugger logo. The bats will be produced and imported under an exclusive license with Louisville Slugger to use their official corporate logo. The bats will be awarded as a membership premium and will potentially be used as a promotional give-away during a “bat night” game. The Louisville Slugger trademark contains the phrase “MADE IN THE U.S.A.” followed by LOUSIVILLE, KY, which is the corporate headquarters for the company that makes the real version of the baseball bats. Beneath this logo is the following: “APC · Made in China · 100% PVC Material ·162369 · 441027 · 1014” You state that the your client believes that since the “Made in the U.S.A.” reference is part of the Louisville Slugger official corporate logo and since the words “Made in China” are printed in close proximity and in an identical font, the proposed marking complies with the rules in 19 CFR 134.46. The marking statute, section 304, Tariff Act of 1930, as amended (19 U.S.C. 1304), provides that, unless excepted, every article of foreign origin (or its container) imported into the U.S. 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 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. Section 134.41(b), Customs Regulations (19 CFR 134.41(b)), mandates that the ultimate purchaser in the U.S. must be able to find the marking easily and read it without strain. Section 134.1(d), defines the ultimate purchaser as generally the last person in the U.S. who will receive the article in the form in which it was imported. Section 134.1(d)(4) further states that if the imported article is distributed as a gift the recipient is the “ultimate purchaser.” In this instance, the ultimate purchaser of the bats is the recipient of the membership premium and promotional giveaways. While you stated that you felt that the proposed marking met the requirements of 19 CFR 134.46 since it included the name of a locality, we must first address its applicability. 134.46, Customs Regulations (19 CFR 134.46) states: 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. Customs has ruled that in order to satisfy the close proximity requirement, the country of origin marking must appear on the same side(s) or surface(s) in which the name of the locality other than the country of origin appears. The purpose of 19 CFR 134.46 is to prevent the possibility of misleading or deceiving the ultimate purchaser as to the origin of the imported article. Moreover, in this instance another provision must be reviewed since the locality (LOUSIVILLE, KY) printed on the bat is part of a trademark. Section 134.47, requires a slightly less restrictive marking. 134.47, Customs Regulations (19 CFR 134.47) states: When as part of a trademark or trade name or as part of a souvenir marking, the name of a location in the United States or “United States” or “America” appear, the article shall be legibly, conspicuously, and permanently marked to indicate the name of the country of origin of the article preceded by “Made in,” “Product of,” or other similar words, in close proximity or in some other conspicuous location. In other words, if the question concerns a trade name, trademark or souvenir, the country of origin marking needs only to meet the general standard of conspicuousness. In either 134.46 or 134.47, the name of the country of origin must be preceded by "Made in", "Product of ", or words of similar meaning. It would appear that the less stringent requirements of section 134.47 would be applicable and met since the phrase “Made in China” appears in close proximity to the words LOUSIVILLE, KY. However, the words “MADE IN THE U.S.A.” also appear on the bat as part of the Louisville Slugger trademark and is not indicative of the true country of origin. This may mislead or deceive the ultimate purchaser as to the actual country of origin of the article. Therefore, in order to avoid any possible confusion resulting from the "MADE IN U.S.A." marking, the bat will require more than the simple "Made in" or "Product of" marking that is required under sections 134.46 and 134.47. See HQ 734427, dated May 4, 1992, where a similar circumstance was presented. The markings “MADE IN THE U.S.A.” and LOUSIVILLE, KY on the bat would be acceptable if the additional marking below also appears which clearly indicates the actual country of origin of the bats: “THIS ITEM IS A REPRODUCTION BASEBALL BAT THAT IS MADE IN CHINA” The marking should either be printed onto the bat or contain an adhesive label attached directly to the bat. In either case, it should appear either immediately above or below the Louisville Slugger logo. If an adhesive label is used, it should not be applied to any plastic wrap, or other wrap, around the bat which might be removed prior to being given to the ultimate purchaser. The Customs district director must be satisfied that the label will not be removed except by the ultimate purchaser. This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 CFR Part 177). A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist James Forkan at james.p.forkan@cbp.dhs.gov. Sincerely, Gwenn Klein Kirschner Director National Commodity Specialist Division