MAR-2-05 CO:R:C:V 732874 NL
District Director
U.S. Customs Service
55 Erieview Plaza
Cleveland, Ohio 44114
RE: Application for Further Review of Protest Number 4196-9-
000039; Marking of Grand and Upright Pianos
Dear Sir:
This is in reference to the above-noted protest and
application for further review filed on behalf of Daewoo
Corporation, the importer, against the decision of the district
director to issue redelivery notices for failure to properly mark
upright and grand pianos with their country of origin as required
by 19 U.S.C. 1304. Customs subsequently seized the merchandise
pursuant to 19 U.S.C. 1595a(c) as the marking of country of
origin was falsely certified. Upon payment of a compromised
amount the seized pianos were subsequently released.
Although by letter dated January 3, 1990, Daewoo withdrew
its protest and application for further review, you indicate in
your memorandum of October 16, 1989 that a decision on the issues
raised is warranted for uniform application of the marking laws
with respect to pianos. Therefore, we are treating your
memorandum forwarding the application for further review as a
request for internal advice.
In your preliminary review you determined that the upright
pianos were properly marked. Accordingly, this decision concerns
only the ordered redelivery of the grand pianos for improper
country of origin marking.
FACTS:
In May and June, 1989, the importer, through its customs
broker, made three entries of upright and grand pianos
manufactured by it in Korea and sold under the "Sojin" brand
name. For each entry Customs issued a Form 4647, Notice of
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Redelivery-Marking, advising that the country of origin marking
of the pianos was not conspicuous as required by section 304 of
the Tariff Act, as amended, (19 U.S.C. 1304).
The upright pianos were marked with their country of origin
by means of stamped or stencilled black lettering approximately
one-half inch in height, reading "MADE IN KOREA" which was
located on the upper right quadrant of the back of the piano.
The lettering was stencilled in indelible ink or paint and coated
with a clear varnish or shellac to assure its permanency.
The grand pianos were marked by means of the same method in
lettering of the same size, with the lettering located on the
underside of the piano on the cross beam. Additionally, on some
of the grand pianos, described by the importer as "top of the
line", there was additional marking on the inside of the pianos.
Inside the case on the plate - the metal frame which holds the
strings - was a plastic plaque approximately twelve inches by
three inches raised prominently from the surface of the plate.
Within the plaque in raised letters approximately one and one-
half inches high were the words "BY L.S. DESIGN/WEST GERMANY".
According to one photograph submitted as part of the record, a
paper sticker was also located under the lid of the piano
approximately one foot to the left of the plaque which stated,
"MADE IN KOREA" in lettering approximately one-half inch high.
The importer maintains that this country of origin marking was
located in close proximity to the name "West Germany". The
inspector's report stated that the marking "MADE IN KOREA "fails
to be of comparable size", and that the marking "WEST GERMANY"
"presents an active misleading capability". The supplement to
the importer's protest suggests that the sticker is designed to
fit within the plaque, next to the words "West Germany".
The importer's protest was received by Customs on September
7, 1989. On September 27 the importer was advised that upon
review and re-examination of the pianos Customs had determined
that the marking of the upright pianos was acceptable. The
importer's protest as to the remaining grand pianos after
preliminary review was recommended for denial by the district
director on October 16. The district director viewed the marking
of the grand pianos on their underside cross beam as not
conspicuous as required by 19 U.S.C. 1304, since an ultimate
purchaser "would be required to lie on the floor and crawl
underneath the piano in order to view the marking." The Deputy
Assistant Regional Commissioner (Commercial Operations), by
memorandum of November 1, 1989, concurred in this recommendation.
We understand that as part of the settlement of the seizure
and as a condition of release, the district director has approved
the remarking of the premium grand pianos such that the small
"MADE IN KOREA" sticker is placed within the boundaries of the
plaque which reads, "WEST GERMANY".
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ISSUES:
Is marking the piano's country of origin on the cross beam
beneath the piano conspicuous within the meaning of 19 U.S.C.
1304?
Does marking the country of origin inside the piano by
means of a paper sticker next to the raised lettering of the
words "WEST GERMANY" satisfy the requirements of 19 CFR 134.46?
LAW & 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 (or 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. Sections 134.11 and 134.44, relied upon by the
district director, elaborate upon the statutory requirements of
conspicuousness, permanency, legibility and indelibility. We
also note that section 134.41(b) requires that the country of
origin marking be such that the ultimate purchaser is able to
find the country of origin marking easily and read it without
strain.
Section 134.46, Customs Regulations, provides, among other
things, that in any case in which the name of any foreign
country or locality other than the country of origin appears on
the article, the name of the country of origin must appear,
legibly and permanently, in close proximity to the foreign name,
in at least a comparable size, preceded by "Made in," "Product
of," or other words of similar meaning.
As to the marking of the country of origin of the grand
piano on the underside of the instrument on its cross beam, the
importer is correct that Customs has not issued any decisions
determining whether marking the underside of a piano is
conspicuous within the meaning of 19 U.S.C. 1304. He argues
that Custom's proposed disposition of his protest is
inconsistent with prior decisions on large furniture which he
claims are analagous articles for country of origin marking
purposes. In particular, the importer directs our attention to
ruling 707766 (July 29, 1977), in which we followed our prior
rulings that large pieces of furniture usually had been required
to be marked in large letters on the rear, or on the underside in
the case of chairs or tables. See, also, T.D. 45121 (1931)(large
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pieces of furniture should be marked on the back or underside).
The importer also points out correctly that under the
holding of Charles A. Redden v. United States, T.D. 44964 (Cust.
Ct. June 11, 1931), the country of origin of an article need not
be marked in the most conspicuous place, "but merely in any
conspicuous place which shall not be covered or obscured by
subsequent attachments or arrangements." Finally, the importer
directs us to a ruling indicating that Customs has recognized
that purchasers of consumer electronic products expect to find
country of origin marking on the back or underside of the
article. See, ruling 707280 (March 16, 1977). From this
citation we take it that the importer would have us find that
what is a conspicuous location depends upon where, on a
particular kind of article, an ultimate purchaser expects to find
country of origin marking. The importer's point is well-taken.
In determining whether the marking by printing on the cross
beam under the piano is conspicuous, we are guided by a number of
the principles identified by the importer. We do not require
country of origin marking which would detract from the appearance
of the article. We require only that the location of country of
origin marking be conspicuous, and not that it be in the most
conspicuous location. We take into account where the ultimate
purchaser of a grand piano expects to find country of origin
marking. As previously recited, we are also guided by the
requirement that the marking be easily found and read without
strain; that the method of marking is appropriate to the nature
of the article; and that the marking will be sufficiently
permanent to insure that the marking will remain on the article
until it reaches the ultimate purchaser unless deliberately
removed.
To the extent a piano is regarded as a piece of furniture,
it makes no sense to require that its aesthetic aspects be
obscured by country of origin marking. In this regard permitting
country of origin marking on the underside or back of tables,
chairs, sofas and the like acknowledges that purchasers of such
articles do not expect to find country of origin marking on
finished furniture surfaces, and would be accustomed to looking
for country of origin marking on the back or bottom of the
article. The expectations of ultimate purchasers with respect to
pianos are different. We note from the submitted sales
materials that on several of the importer's models the name of
the manufacturer appears to be painted directly onto the
finished case below the keyboard on the part known as the keybed.
Moreover, by long tradition the name of the piano manufacturer is
almost invariably painted so as to be visible when the lid on the
keyboard, known as the fallboard, is raised. There is also a
long tradition in the piano industry of placing names and other
information inside the case, or "belly" of the piano. In our
view the rulings on furniture do not provide a basis for
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permitting country of origin marking only on the underside of
grand pianos, since ultimate purchasers expect to find
considerable information written on the finished surfaces and
inside the case.
These latter two locations are, in our view, the more
traditional locations for model and brand information, and both
are conspicuous for country of origin marking purposes. Usually
the name of the maker is given under the keyboard lid, or
fallboard, while serial and model numbers and patent information
are usually molded or die cast immediately inside the case into
the plate. In an upright piano it is is difficult for a
purchaser to obtain a clear view of this location, even with the
top open. In a grand piano, however, this location is often
given prominence by spray painting with bronzing powder, and the
maker often die sinks or molds an elaborate mark into the metal
of the frame. The purchaser is invariably afforded the
opportunity to raise the lid of the piano to look closely at the
interior of a grand piano prior to purchase, observing the action
of the keyboard, the resonance of the strings, the quality of
sound produced by the soundboard, and noting the overall
craftsmanship displayed in the manufacture of the "guts" of the
instrument.
In light of the foregoing, it is our opinion that purchasers
of grand pianos expect to find information as to manufacturer,
brand name, model, serial number, and country of origin either on
the raised keyboard cover (the fallboard) or inside the case on
the metal plate. We do not believe that requiring the name of a
piano's country of origin to be marked in those locations would
in any way, unlike furniture, interfere with its aesthetic
appeal. The importance of the plate location, in particular, is
confirmed by the importer's own manufacturing practice. On those
"premium" instruments which were designed in West Germany, a fact
which the importer presumably regards as a significant selling
point, the plaque which reads "BY L.S. DESIGN/WEST GERMANY" is
located on the plate immediately inside the case. It is apparent
that the importer chose this location to assure that this feature
was easily found by purchasers in that location where they would
be expecting to find information of that sort. As previously
noted, the importer also sells some models in which the name of
the manufacturer is located beneath the keyboard on the key bed.
We find that these locations are conspicuous for purposes of
country of origin marking.
We agree with the district director that marking the name of
the country of origin on the underside of a grand piano is not
conspicuous. As he found, a purchaser would be required to crawl
beneath the piano in order to find the marking, making the mark
difficult to locate and read without strain. Moreover, as found
above, there are two or perhaps three locations on a grand piano
to which a prospective purchaser would turn for manufacturing and
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country of origin information before looking beneath the piano.
To be clear on this point, our finding is not merely that
marking the name of the country of origin beneath the piano is
less conspicuous than the other locations noted, but that in
relation to them and to purchasers' expectations it is not
conspicuous at all. See, Redden, supra.
The second country of origin marking issue in your request
is whether with respect to the "top of the line" grand pianos the
marking "MADE IN KOREA" was sufficiently proximate to the name
"WEST GERMANY" and in comparably-sized lettering to satisfy the
requirements of 19 CFR 134.46. The purpose of that section is to
prevent the ultimate purchaser from being misled or possibly
deceived as to the country of origin of an article when words or
names on it or its container refer to a country which is not the
actual country of origin. It appears from the record that at the
time of importation these grand pianos were marked by means of a
small sticker located either several feet to the left of the
plaque bearing the words "WEST GERMANY" or within the bounds of
the plaque. The lettering of "MADE IN KOREA" was one-third or
less of the size of the lettering of "WEST GERMANY". This
country of origin marking was plainly not in lettering of
comparable size as required by 19 CFR 134.46. With regard to the
location we find that the stickers appearing within the bounds of
the plaque satisfy the close proximity requirement of 19 CFR
134.46, whereas the stickers appearing several feet from the
plaque do not.
The importer urges that the lettering of "MADE IN KOREA" is
as large as can be accommodated within the bounds of the plaque.
For these entries the district director has determined that the
requirements of 19 CFR 134.46 may be satisfied by the application
of the small sticker within the boundaries of the plaque, and we
shall not disturb that decision. However, in order to comply in
the future with 19 CFR 134.46 the importer should be required to
provide the name of the country of origin preceded by "Made in"
or "Product of" in lettering of approximately the same size as
the lettering of "WEST GERMANY", either within the boundaries of
the plaque or immediately adjacent to it in close proximity.
HOLDING:
1) Marking a grand piano's country of origin on the cross beam
beneath the piano is not conspicuous within the meaning of 19
U.S.C. 1304.
2) To satisfy the requirements of 19 CFR 134.46, future
shipments of the premium model grand pianos designed in West
Germany should be marked with their Korean country of origin in
close proximity and in lettering of comparable size to the name
"West Germany" appearing on the plastic plaque on the metal frame
inside the pianos.
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A copy of this decision should be furnished to counsel for
Daewoo.
Sincerely,
Marvin M. Amernick
Chief, Value, Special Programs
and Admissibility Branch