MAR-2-05 CO:R:C:V 731314 LR
Diane L. Weinberg, Esq.
Rode & Qualey
295 Madison Avenue
New York, NY 10017
RE: Country of Origin Marking Requirements for a T-shirt
bearing the trademark "Perry Ellis America"
Dear Ms. Weinberg:
This is in response to your request dated March 15, 1988,
for a country of origin marking ruling on behalf of your client,
Perry Ellis Division of Manhattan Industries, Inc. Specifically,
you request a ruling that the submitted sample T-shirt is legally
marked and falls within the exception for trademark articles
under section 134.47, Customs Regulations.
FACTS:
The sample garment, a product of Zimbabwe, is a short-
sleeved black T-shirt with a rib knit neckband. The words "Perry
Ellis America", a registered trademark of your client, appear in
two locations on the T-shirt: on the outside of the shirt
several inches above the hemline on the left-hand corner of the
front panel and on the inside of the shirt on a textile label
sewn into the center of the neck midway between the shoulder
seams. The trademark on the front of the garment is prominently
displayed in large white letters (approximately 1/4" in height
and width); the trademark on the neck label appears in blue
letters (approximately 1/8" in height and width) on a white label
measuring approximately 2 1/2" x 1 1/4". The words "Made in
Zimbabwe" appear in smaller black letters (approximately 1/16" in
height and width) on another smaller textile fabric label
(approximately 1" x 3/4"). The country of origin label is sewn
into the bottom right hand corner of the "Perry Ellis America"
label. The country of origin appears below the fabric content
and the RN number. A third label indicating the size (in this
case "M") is sewn below the "Perry Ellis America" label to the
left of the country of origin label.
ISSUE:
Whether the country of origin label on the sample T-shirt
is conspicuous within the meaning of section 304, Tariff Act of
1930, as amended (19 U.S.C. 1304), and section 134.47, Customs
Regulations (19 CFR 134.47)?
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LAW AND ANALYSIS:
As you are aware, 19 U.S.C. 1304 requires that articles of
foreign origin imported into the United States be legibly,
conspicuously and permanently marked to indicate the country of
origin to the ultimate purchaser in the U.S. As provided in 19
CFR 134.41, the marking is considered conspicuous if the ultimate
purchaser is able to find the marking easily and read it without
strain. Special marking requirements are applicable when the
word "America" appears on the article as part of a trademark. In
such case, 19 CFR 134.47 provides that 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 to
the word "America" or in some other conspicuous location.
(emphasis added)
The Customs Service has determined that country of origin
marking appearing on the inside center of the neck of a shirt
midway between the shoulder seams or in that immediate area is
conspicuous within the meaning of 19 U.S.C. 1304 and is, in fact,
the requisite location. See T.D. 54640(6). In T.D. 71-264(3),
Customs ruled that marking of trouser, jeans and slacks should be
made by means of a permanent label affixed in a conspicuous
location on the garments, such as the inside of the waistband.
In HQ 729494, dated May 6, 1986, Customs ruled that a pair
of slacks was not conspicuously marked where the country of
origin label appeared inches beneath the waistband and far
removed from the waistband's center seam and the brand name
label. In that case, the lettering was miniscule by comparison
with the brand name label, and the country of origin was "lost"
in other wording regarding the material content and the lot
number contained thereon. In the same ruling, a jacket was found
not to be properly marked because the label, although located in
the center of the neck area, was located behind and beneath the
brand label so that only about half the country of origin was
visible.
In HQ 729495, dated April 21, 1986, Customs ruled that
certain men's shirts were not conspicuously marked as to country
of origin. In that case, the shirt had two labels permanently
affixed to the inside of the shirt collar. One label was placed
in the middle of the back of the collar, and contained the
inscription "Fabric Woven in U.S.A.", in white lettering
approximately 1/16" in height and width, on a black background.
The second label was sewn into the collar 5/8" below and 3/4" to
the right of the first label, and contained the inscription
"Assembled in Honduras" in block letters approximately 1/16" high
and 1/32" wide. Headquarters found that the shirts in question
did not satisfy the marking requirements because the fabric label
was not affixed on the inside center of the neck midway between
the shoulder seams or in that immediate area as required by T.D.
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54640(6) and because the fabric label with the country of origin
was significantly off to the side and partially obscured by the
collar. (The marking also did not satisfy the requirements of 19
CFR 134.46, which are not applicable here).
In determining whether or not a particular country of
origin marking is sufficiently conspicuous, Customs will take
into account the presence of words or symbols on the article
which may mislead the ultimate purchaser as to the country of
origin. See HQ 729096, dated January 2, 1986 (In light of
prominently displayed symbols indicative of a country other than
the country of origin on both the imported article and the
container, the country of origin label which appeared in a
location of the shoe which normally would have been sufficiently
conspicuous was not acceptable. Customs found that the container
also had to be conspicuously marked with the country of origin).
The question here is whether or not the country of origin
label is the neck area is sufficiently conspicuous in view of the
two references to the "Perry Ellis America" trademark described
above. While the country of origin label does not appear in
close proximity to the "Perry Ellis America" trademark on the
front of the garment, we find that it appears in "some other
conspicuous location" and therefore satisfies the requirements of
19 CFR 134.47. Although the "Made in Zimbabwe" marking is not as
prominent as the two references to "Perry Ellis America", we are
of the opinion that the country of origin marking is conspicuous
enough so that the ultimate purchaser would locate it easily upon
a casual inspection and would not be misled by the two references
to "America." This is attributable to the fact that the country
of origin information appears in its usual location (in the
inside center of the neck midway between the shoulder seams) and
close to the fabric content and size designation, other important
consumer information. The country of origin label on the
submitted sample is also more conspicuous than the origin labels
that appeared on the garments described above which were found to
be unacceptable. The label here is not obscured by another
label; nor is it off to the side or inches below the brand label.
We also note that the two references to "America" are not as
prominent as the misleading symbols which appeared on the shoes
and shoe boxes in HQ 729096.
Despite our determination that the country of origin on the
submitted sample is conspicuous, a few caveats must be noted.
Since the country of origin label is below the brand name label,
the garment could easily be packaged in a way so that the brand
label is visible and the country of origin label is not. If the
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country of origin is obscured in any way by packaging or
otherwise prior to the time of sale to the ultimate purchaser,
the marking would be unacceptable. In such circumstances, the
ultimate purchaser would be misled by the word "America" which is
prominently displayed on the garment. In addition, any change to
the country of origin label to make it less conspicuous (e.g.
smaller letters, placement lower down) would render the marking
unacceptable.
HOLDING:
The submitted T-shirt, which is marked "Made in Zimbabwe"
in the center of the neck, immediately below the brand name
"Perry Ellis America" label is legally marked pursuant to 19
U.S.C. 1304 and 19 CFR 134.47.
Sincerely,
Marvin M. Amernick
Chief, Value, Special Programs
and Admissibility Branch
1cc: CO:R:C:V:LRODBART:LDC:7/13/88
Diane L. Weinberg, Esq.
Rode & Qualey
295 Madison Avenue
New York, NY 10017