MAR-2-05 CO:R:C:V 731524 jd
William D. Outman, II, Esq.
Baker & McKenzie
815 Connecticut Avenue, N.W.
Washington, D.C. 20006-4078
RE: Country of origin marking requirements applicable to
sunglasses imprinted with souvenir marking
Dear Mr. Outman:
This is in reply to your letter of June 14, 1988,
concerning the application of country of origin marking
requirements to sunglasses imprinted with souvenir marking. We
regret the delay in responding.
FACTS:
According to your submission, your client will be producing
a line of sunglasses in Mexico for distribution in Puerto Rico.
The subject sunglasses will have the words "PUERTO RICO",
followed by the symbol of Puerto Rico, the tower of a building
silhouetted against the sky, imprinted on the upper edge of the
left lens.
The words "FRAME MEXICO" appear in raised letters
approximately 1/16" in height on the inner side of the left
temple of the sample sunglasses submitted for examination. The
lettering is referred to as "blind", i.e., it does not contrast
with its background. Also, a hang tag that will be attached to
the sunglasses as put up for sale is imprinted, in pertinent
part, with the words "LEOMINSTER, MA, USA" and, in close
proximity, "ASSEMBLED IN MEXICO".
In a recent discussion with a member of my staff, you were
told that the "blind" marking described above is not conspicuous.
You have supplied two samples of sunglasses produced by your
client with marking you consider conspicuous. One pair is of
black plastic with the word "TAIWAN" stamped in white lettering
on the inner left temple. The other pair has a gold-toned metal
frame with the words "FRAME-MEXICO" molded in raised lettering on
the inner left temple. The letters do not contrast but are of
sufficient size and raised enough to be considered conspicuous.
You stated that your client is willing to change the marking
method on the souvenir sunglasses and you were informed that
although both of the recent samples are considered conspicuously
marked, the stamped contrasting lettering is the preferred
method.
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You inquire as to what marking requirements are triggered
by the presence of the souvenir marking on the lens?
ISSUES:
Is country of origin marking appearing in "blind lettering"
approximately 1/16" in height on the inner left temple of
sunglasses sufficient to satisfy the requirements of 19 U.S.C.
1304?
What marking requirements are triggered by the presence of
souvenir marking on one of the lenses of such sunglasses?
LAW AND ANALYSIS:
Section 304 of the Tariff Act of 1930, as amended (19
U.S.C. 1304), provides that every article of foreign origin (or
its container) imported into the United States shall be marked in
a conspicuous place as legibly, indelibly and permanently as the
nature of the article (or container) will permit, in such a
manner as to indicate to the ultimate purchaser in the United
States the English name of the country of origin of the article.
Pursuant to { 134.41(b)), Customs Regulations (19 CFR 134.41(b)),
ultimate purchasers must be able to find marking easily and read
it without strain.
Section 134.47, Customs Regulations (19 CFR 134.47),
states, in pertinent part, that when as part of souvenir marking
the name of a location in the U.S. appears on an article, the
article shall be legibly, permanently and conspicuously 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.
Treasury Decision 74-38 (January 22, 1974; 39 FR 2470), set
forth the requirements for marking of eyeglass and sunglass
frames. "[N]otice is hereby given that imported eyeglass and
sunglass frames, whether assembled or unassembled, must be so
marked by means of die stamping in a contrasting color, by raised
lettering, by engraving, or by some other method producing a
permanent mark. The marking must be legible and conspicuous and
must clearly indicate the country of origin to the ultimate
purchaser in the United States..."
Upon examination of the sample sunglasses submitted, we
find that the country of origin marking on the inner left temple
does not satisfy the requirements of 19 U.S.C 1304. Due to the
lack of contrast between the lettering and the background, the
marking is difficult to find. Additionally, the lack of contrast
coupled with the small size of the letters combine to make the
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marking difficult to read. Although T.D. 74-83 listed raised
lettering as an acceptable method of marking for this type of
article, by adding that the marking must be conspicuous, a
logical reading of the T.D. reveals that raised lettering is not
automatically considered conspicuous. Raised lettering must be
easy to find and readable without strain to meet marking
requirements.
Non-contrasting lettering has been a factor in determining
that country of origin marking on various articles failed to
satisfy marking requirements. For example, indented lettering on
a black camera body (708609, February 27, 1978); lettering on a
pen (724772, March 21, 1984); raised lettering on the handle of a
screwdriver (724767, May 14, 1984); raised lettering around the
airhole on an inflatable vinyl ball (728179, July 3, 1985); and
raised or indented lettering on small plastic toys (731457, June
30, 1988).
As noted above, you have submitted additional samples
exhibiting marking that is conspicuous. You state that your
client is agreeable to changing the method of marking used on the
souvenir glasses. On plastic frames such as the souvenir glasses
submitted, stamped, contrasting color lettering, of a larger size
would be considered conspicuous. The placement on the left inner
temple is acceptable and may be continued.
Assuming that the marking on the temple is corrected, we
turn to the implications of the words "PUERTO RICO" appearing on
the lens. For reasons explained below, we determine that under
the operation of { 134.47, Customs Regulations, such reference
requires no additional marking to that appearing on the temple.
In applying { 134.47 to souvenir marking reading "PUERTO
RICO", we are aware that Puerto Rico is not a location in the
U.S. However, in ruling 710682 (June 26, 1979), { 134.47 was
applied to the trademark "Rome 1001" appearing on jeans. The
application of { 134.47 was explained thusly: "The 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." Similarly, we believe the intent of { 134.47 will be
best served by including foreign souvenir designations. Since
{ 134.47 requires that on articles with souvenir marking the
country of origin marking appear in a conspicuous location, not
necessarily in close proximity to the souvenir marking, the
corrected marking on the temple will suffice.
For purposes of marking law, a hang tag attached to an
article is considered part of the article. Therefore, the
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presence of a U.S. address on the hang tag to be attached to
these sunglasses invokes the operation of { 134.46, Customs
Regulations (19 CFR 134.46). That section states, in pertinent
part, that when the name of a U.S. city appears on an imported
article, there shall appear, legibly, permanently, and in close
proximity, and in at least comparable size print, the name of the
country of origin preceded by "Made in", "Product of", or other
words of similar meaning. Concerning the similarity of
"Assembled in" to the suggested phrases, Customs ruling 731507
(October 17, 1989), stated:
Finally, it should be noted that the phrase "Assembled
in" will not constitute sufficient country of origin
marking outside the context of section 10.22 (i.e.,
where an assembled article is not eligible for the
subheading 9802.00.80 exemption). In such case, the
general country of origin rule applies and the country of
origin is the country of assembly only if the assembly
process constitutes a substantial transformation.
Approval of the phrase "Assembled in" outside the context
of section 10.22 would be misleading since the country of
assembly may or may not be the country of orign for
purposes of 19 U.S.C 1304.
You have not indicated that the subject sunglasses are eligible
for consideration under { 10.22, Customs Regulations (19 CFR
10.22). That section refers to the marking of imported articles
that have been assembled abroad in whole or in part of U.S.
components. Accordingly, the hang tag attached to the sunglasses
should be changed to read "MADE IN MEXICO" or "PRODUCT OF
MEXICO."
HOLDING:
As explained above, the sample souvenir sunglasses are not
conspicuously marked. However, you have presented two other
samples of sunglasses produced by your client that are
conspicuously marked, and conveyed your client's willingness to
change the marking method on the souvenir glasses to a method
that would produce a conspicuous marking. Once the temple
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marking is corrected, no additional marking is necessary because
of the souvenir marking on the left lens. Finally, the wording
on the hang tag attached to the sunglasses must be changed to
read "Made in" or "Product of" in conformity with { 134.46,
Customs Regulations.
Sincerely,
Marvin M. Amernick
Chief, Value, Special Programs
and Admissibility Branch