CLA-2 R:C:S 559267 MLR
Robert L. Follick, Esq.
Follick & Bessich, P.C.
225 Broadway, Suite 500
New York, NY 10007
RE: Country of Origin Marking on Ceramic Coffee Canisters;
Containers; Cardboard box; Marking Exception; 19 CFR
134.46; 19 CFR 134.32(d); 19 CFR 134.36(b); revocation
Dear Mr. Follick:
This is in reference to your letter of June 15, 1995,
requesting reconsideration of New York Ruling Letter (NYRL)
809408 dated May 17, 1995, on behalf of Jayme Products,
concerning a country of origin marking exception for certain
ceramic coffee canisters. A sample was submitted with your
request. Pursuant to section 625(c)(1), Tariff Act of 1930
(19 U.S.C. 1625(c)(1)), as amended by section 623 of Title VI
(Customs Modernization) of the North American Free Trade
Agreement Implementation Act, Pub. L. 103-182, 107 Stat.
2057, 2186 (1993) (hereinafter "section 625), notice of the
proposed revocation of NYRL 809408 was published September
13, 1995, in the Customs Bulletin, Volume 29, Number 37.
FACTS:
Jayme Products is the importer of ceramic coffee
canisters which are sold exclusively by mail order either as
a promotional item to first time coffee purchasers, or by
mail order offered from a General Foods catalogue. In all
instances, it is stated that the canisters are distributed to
the ultimate purchaser directly by mail packed in an original
sealed cardboard box in which the canister is imported. The
canisters are never sold as open stock or without its
packaging.
The sample canister is packed in a white cardboard box
which itself is packed in a mailing carton. The front side
panel of the cardboard box has an open panel so that the
canister with the words "Gevalia Kaffe" is visible upon
opening the mailing carton. (The canister does not contain
any coffee.) Affixed to the side panel of the cardboard box
(the bottom of the white cardboard box as the canister is
lying in the mailing carton) is a label measuring 2 x 1 1/8
inches, with the marking "Made in Taiwan." Inside the
cardboard box, the canister is secured by two pieces of
styrofoam placed at the top and bottom. After removing the
canister from the white cardboard box, the words "By
Appointment to His Majesty The King of Sweden" become
apparent on top of the canister.
ISSUE:
Whether the ceramic coffee canisters may be excepted from
marking pursuant to 19 U.S.C. 1304(a)(3)(D) and 19 CFR
134.32(d), provided the cardboard box containing the
canister, which itself is packed in a mailing carton, is
marked with the country of origin of the canister.
LAW AND ANALYSIS:
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.
Pursuant to 19 U.S.C. 1304(a)(3)(D) and section
134.32(d), Customs Regulations {19 CFR 134.32(d)}, an
exception from individual marking is applicable where the
marking of the container of an imported article will
reasonably indicate the origin of the article. This
exception is normally applied in cases where the imported
article is imported in a properly marked container and
Customs officials at the port of entry are satisfied that the
ultimate purchaser in the U.S. will receive it in its
original marked container.
In NYRL 809408, it was determined that the reference "By
Appointment to His Majesty The King of Sweden" on the top of
the canister invoked 19 CFR 134.46, which requires that in
cases where the name of a location other than the country in
which the article was produced appears on the 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. Therefore, NYRL 809408 held that the
country of origin marking "Made in Taiwan" must appear on the
side or panel of the canister that makes reference to the
country of "Sweden."
In this case, it is claimed that the provisions of 19 CFR
134.46 are not triggered and that NYRL 809408 did not
consider that the canisters are only distributed by mail.
Therefore, an exception from marking the canister is
requested because the cardboard box will be marked with the
country of origin of the canister packed therein, and since
the canister is solely distributed by mail, the ultimate
purchaser will see the country of origin on the cardboard
box. In your submission to the New York Seaport, you cite
Headquarters Ruling Letter (HRL) 734529 dated April 13, 1992,
where Customs held that 12 golf balls packed in four sleeves,
three balls per sleeve, inside a remailer box marked with a
sticker labeled "Made in Taiwan" and sold directly to the
retail customer were excepted from individual marking so long
as the district director was able to determine that the items
would only be sold in this manner.
Customs has consistently held that in those cases in
which reference to a place other than the country of origin
is made on an imported article, but such reference would not
confuse the ultimate purchaser, the requirements of 19 CFR
134.46 are not triggered.
Furthermore, Customs has determined that the special
requirements of 19 CFR 134.36(b) should not be applied
automatically to all imported articles or their containers
which bear a non-origin geographical reference. Section
134.36(b), Customs Regulations {19 CFR 134.36(b)} states that
an exception from marking shall not apply to any article or
retail container bearing any words, letters, names, or
symbols described in 134.46 which imply that an article was
made in a country other than the actual country of origin.
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 country of origin of the article on which it
appeared. Likewise, in HRL 733695 dated January 15, 1991,
women's trousers with metal rivets die-stamped 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. However, in HRL 732486 dated September 5, 1989,
a label, crest, and hangtag containing the words "Riviera
Line" were attached to imported garments. The hangtag
contained a picture of a cruise ship in the center with two
circles around the ship. Below the ship in large bold
lettering was the phrase "RIVIERA LINE." The crest had a
large script letter "R" in the center surrounded by a crest
with the word "RIVIERA" below the letter "R." It was
determined that while the crest was part of the design of the
garment, the hangtag with the phrase "Riviera Line" triggered
the special marking requirements of 19 CFR 134.46; therefore,
the hangtag had to contain the country of origin printed in a
conspicuous manner and placed in close proximity to the
phrase "Riviera Line." The rationale was that a locality
other than the country of origin is more likely to cause
confusion when it appears on a hangtag attached to a garment
because a hangtag is designed to attract the attention of the
purchaser and generally contains information about the
article. As such, a reference on the hangtag to a locality
other than the country of origin of the article to which it
is attached was potentially misleading with regard to the
garment's country of origin.
In this case, although the canister contains the phrase
"By Appointment to His Majesty The King of Sweden," we do not
find that the reference to Sweden triggers the requirements
of 19 CFR 134.46. First, the ultimate purchaser of the
coffee and coffee canisters should understand that "By
Appointment to His Majesty The King of Sweden" refers to the
Gevalia coffee and not to the canister. Second, it is our
opinion that the ultimate purchaser would not confuse the
reference to the King of Sweden as any information concerning
the origin of the canister. Since the purpose of 19 CFR
134.46 is to prevent the ultimate purchaser from being
confused as to the country of origin of a product, we
conclude that the reference to the King of Sweden does not
invoke the requirements 19 CFR 134.46. Accordingly, as the
requirements of 19 CFR 134.46 are not triggered, 19 CFR
134.36(b) is not applicable. Therefore, we find that an
exception from marking the canister itself under 19 U.S.C.
1304(a)(3)(D) and 19 CFR 134.32(d) may be found because the
carton in which the canister is packed is a properly marked
container which reaches the ultimate purchaser in the U.S. by
mail.
HOLDING:
Based upon the information provided, it is our opinion
that the reference "By Appointment to His Majesty The King of
Sweden" does not trigger the requirements of 19 CFR 134.46.
Therefore, we find that an exception from marking the
canister itself under 19 U.S.C. 1304(a)(3)(D) and 19 CFR
134.32(d) may be found because the carton in which the
canister is packed is a properly marked container which
reaches the ultimate purchaser in the U.S. by mail.
NYRL 809408 is hereby revoked.
In accordance with section 625, this ruling will become
effective 60 days after its publication in the Customs
Bulletin. Publication of rulings or decisions pursuant to
section 625 does not constitute a change of practice or
position in accordance with
19 CFR 177.10(c)(1).
Sincerely,
John Durant, Director
Tariff Classification
Appeals Division