MAR-2-05 CO:R:C:S 558845 BLS
Stephen M. Zelman, Esq.
Stephen M. Zelman & Associates
845 Third Avenue
New York, New York 10022
RE: Country of origin marking of watches; trademark;
Additional U.S. Note 4, Chapter 91, HTSUS; 19 CFR
134.46 and 134.47
Dear Zelman:
This is in response to your letter dated October 13, 1994,
on behalf of Jorst International, requesting our opinion as to
whether certain country of origin marking of ladies' and men's
wristwatches satisfy the country of origin marking requirements
set forth under Part 134 of the Customs Regulations and
Additional U.S. Note 4 to Chapter 91, ("Additional Note 4"),
Harmonized Tariff Schedules of the United States (HTSUS). We
understand that entries have been filed with Customs at JFK
Airport since the original ruling request was made and,
accordingly, we are providing a copy of this ruling to that
office.
FACTS:
You state that the movement of each watch is marked on one
of its bridges or top plates to show the name of the country of
manufacture, i.e., Japan, and the name of the manufacturer. The
case is marked on the outside of the back cover to show (1) the
name of the purchaser, Jorst International, (2) the country of
origin of the case, "Denmark case SS", and (3) the country of
manufacture of the movement, "Japan Quartz Movement". The watch
band is marked with its country of origin, "Denmark", and the
face of the watch, as well as the back of the case, is also
marked to show the company's trademark, "SKAGEN DENMARK". We
understand that the trademark for this mark is pending with the
U.S. Office of Patents and Trademarks. A copy of a "Filing
Receipt For Trademark Application", dated October 1, 1993, has
been submitted with the request. The watch face contains no
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other markings. You also note that the movement has no jewels.
ISSUE:
What are the country of origin marking requirements
for the subject watches?
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 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 are the product. 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. Inc., 27 CCPA
297, 302, C.A.D. 104 (1940).
Part 134, Customs Regulations (19 CFR Part 134), implements
the country of origin marking requirements and exceptions of 19
U.S.C. 1304. For country of origin marking purposes under 19
U.S.C. 1304, Customs considers the country of origin of a watch
to be the country of manufacture of the watch movement. See
Headquarters Ruling Letter (HRL) 731546 dated October 27, 1988.
The country of origin marking for a watch may be placed on the
face of the dial or on the outside surface of the back cover of
the watch case. As provided in 19 CFR 134.41(b), the country of
origin marking is considered to be conspicuous if the ultimate
purchaser in the U.S. is able to find the marking easily and read
it without strain.
Section 134.46, Customs Regulations (19 CFR 134.46),
requires that if the name of any city or locality in the U.S.
other than the country or locality in which the article was
manufactured or produced, appears on an imported article or its
container, 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. The
purpose of this section is to prevent the possibility of
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misleading or deceiving the ultimate purchaser as to the actual
origin of the imported good.
However, where a U.S. locality, the words "United States",
or a similar designation appears as part of a trademark or trade
name, the article shall be 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. See 19 CFR 134.47. While this regulation
pertains to a trademark or trade name containing the name of a
location in the U.S., Customs has held that "[t]he rationale for
granting a special exemption for trademarks and trade names
containing the name of a domestic locality applies at least as
strongly to trademarks bearing the name of a foreign locality.
Accordingly, it is our opinion that the intent of 134.47 was to
include foreign trademark designations as well as domestic
locales."
(See HRL 731524 dated December 18, 1989, quoting HRL 710682
dated June 26, 1979.)
We have previously held that evidence of an application for
a trademark registration will be sufficient to invoke the less
restrictive provisions of 19 CFR 134.47. See HRLs 734066 dated
July 15, 1991, and 734455 dated July 1, 1992. However, if for
some reason the application is denied, then the requirements of
19 CFR 134.46 will come into play. Since the evidence
establishes that an application for registration of the trademark
"Skagen Denmark" has been filed with the U.S. Office of Patents
and Trademarks, 19 CFR 134.47 is applicable. Therefore, country
of origin marking on the face of the dial is not required, as
long as appropriate country of origin marking is placed on some
other conspicuous location.
As noted, supra, the country of origin marking for a watch
may be placed on the face of the dial or on the outside surface
of the back cover of the watch case. Since we have found that
the word "Movement", or an abbreviation thereof, is the
equivalent of "Made In" (See HRL 735251 dated October 7, 1993),
the term "Japan Quartz Movement", placed on the outside cover of
the watch case, is an acceptable country of origin marking,
assuming all other requirements of 19 U.S.C. 1304 are satisfied.
Section 134.43(b), Customs Regulations (19 CFR 134.43(b)),
in conjunction with 19 CFR 11.9, provides that watches must be
marked in accordance with the special marking requirements set
forth in Additional Note 4. This note requires that any watch
movement or case provided for in the chapter, whether imported
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separately or attached to an article provided for in the chapter,
shall not be permitted to be entered unless conspicuously and
indelibly marked by cutting, die-sinking, engraving, stamping or
mold-marking (either indented or raised), as specified in the
provisions of this note. This language is mandatory. Customs
has no authority to grant exemptions to the special marking
requirements for watches. See HRL 726711 dated October 22, 1984.
Section (a) of Additional Note 4 requires that watch
movements be marked on one or more of the bridges or top plates
to show: (1) the name of the country of manufacture; (2) the name
of the manufacturer or purchaser; and (3) in words, the number of
jewels, if any, serving a mechanical purpose as frictional
bearings. Section (c) of Additional Note 4 requires that watch
cases shall be marked on the inside or outside of the back cover
to show: (1) the name of the country of manufacture; and (2) the
name of the manufacturer or purchaser. Section 11.9(b), Customs
Regulations (19 CFR 11.9(b)), provides that the name of the
manufacturer or purchaser which must appear on articles provided
for in Chapter 91, HTSUS, and specified in Additional Note 4, may
be either the actual name of the manufacturer or purchaser of a
duly registered trade name under which such manufacturer or
purchaser carries on his business. A trademark shall not be
accepted as meeting any such marking requirement unless it
includes the full name of the manufacturer or purchaser. The
term "purchaser" as used in this paragraph means the purchaser in
the U.S. by whom or for whose account the articles are imported.
Based on the description of the marking of the movement and
case, and a review of the provided illustrations, we find that
the marking of these components will satisfy the requirements of
Additional Note 4, provided that they are conspicuously and
indelibly marked in the manner provided under the note. We also
find that the word "Denmark", on the band, is an acceptable
marking to indicate the country of origin of this component,
provided the marking is conspicuous, legible, and permanent.
HOLDING:
Based on the information submitted, the marking "Japan
Quartz Movement", placed on the outside cover of the watch case,
is an acceptable country of origin marking, assuming all other
requirements of 19 U.S.C. 1304 are satisfied. Marking the bridge
or top plate of the movement to show the country of manufacture
of this component, Japan, and name of the manufacturer, as
mandated under the special marking requirements of Additional
Note 4, is acceptable provided the marking is indelible and
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conspicuous as described under the note. Marking the case on the
outside of the back cover to show the country of origin, "Denmark
case SS", and the name of the purchaser, "Jorst International",
is also in compliance with Additional Note 4, as long as the
marking is indelible and conspicuous. The word "Denmark", on the
band, is acceptable country of origin marking, assuming that it
otherwise satisfies the requirements of 19 U.S.C. 1304.
The term "Skagen Denmark", located on the face of the watch,
is considered a trademark for purposes of 19 CFR 134.47.
Therefore, unless the application for a trademark registration
filed with the U.S. Office of Patents and Trademarks is denied,
country of origin marking on the face of the watch is not
required, and the marking "Japan Quartz Movement" on the outside
cover of the case satisfies the requirements of 19 CFR 134.47.
We note that there is no requirement that the mark "Skagen
Denmark" be recorded with Customs, assuming that it will
eventually be registered. However, should the application for
registration of the mark be denied, it is incumbent upon Jorst
International or its duly authorized representative to provide
notice to Customs of such denial.
A copy of this ruling letter should be attached to the entry
documents filed at the time this merchandise is 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