MAR-2-05 CO:R:C:V 733691 GRV
Barry Kaplan, Esq.
Serko & Simon
One World Trade Center - Suite 3371
New York, N.Y. 10048
RE: Location of country of origin marking on shoes bearing a
trademark incorporating a geographic name (U.S. locality)
other than that of the country of origin. 19 CFR 134.41;
conspicuousness; trademark; 19 CFR 134.47; C.S.D. 86-5;
730597; C.S.D. 88-38; C.S.D. 89-91; 730070
Dear Mr. Kaplan:
This is in response to your letter of July 26, 1990, on
behalf of Shonac Corp., requesting a ruling regarding the country
of origin marking of shoes bearing a registered trademark which
incorporates a geographic name (U.S. locality) other than that of
the country of origin. Three shoes samples were submitted for
examination.
FACTS:
Shoes manufactured abroad will be marked to indicate their
country of origin either on the bottom of the sole or on the
inside at the heel and one or more versions of the trademark
"Sandler of Boston" will be imprinted on the inside of the shoe
on the sock liner at the heel. ("Sandler of Boston," "SANDLER,"
and "S.O.B." are trademarks duly registered with the U.S.
Trademark Office, as evidenced by the copies of the trademark
certificates of a mark upon the principal register submitted with
your ruling request). The shoe samples submitted are marked with
their country of origin, preceded by "MADE IN," by means of
either branding, which leaves a contrasting impression in the
article stamped, injection molding, which leaves raised letters
in the article in the same color as the article, or ink-stamping,
which leaves a contrasting color mark. On two of the samples,
the country of origin markings are printed in approximately 9-
point print (1/8 inch letters) (a point is a unit of type
measurement equal to 0.01384 inch or nearly 1/72 in., and all
type sizes are multiples of this unit) on the sole, and the
trademarks are printed in 18-point print ( inch letters) on the
inside of the shoe on the sock liner at the heel. The third
sample is marked with its country of origin by means of an ink
stamp inside the heel (not on the sock liner) in approximately
5-point print (<1/12 inch letters). (For an understanding of the
print size/type terms referenced here, see the entry under "Type
(printing)" in volume 18 of McGraw-Hill Encyclopedia of Science &
Technology (6th ed., 1987), or the entry under "Printing" (in
pre-1985) or "Printing, Topography and Photoengraving" (printings
since 1985) in volume 14 of The New Encyclopaedia Britannica
(15th ed., 1975)).
You specifically request that we confirm your belief that
prominent stamping, branding, or labeling the country of origin
on shoes bearing a trademark incorporating a geographic name
other than that of the country of origin will satisfy the
requirements of 19 U.S.C. 1304 and 19 CFR Part 134 as acceptable
marking, and request that we rule regarding the various
placements of the country of origin marking on the shoes.
ISSUE:
Whether the locations of the country of origin marking on
shoes--on either the bottom of the sole or the inside at the
heel--in relation to the registered trademark used, meet the
conspicuousness requirements of 19 U.S.C. 1304 and 19 CFR 134.47.
LAW AND ANALYSIS:
The marking statute, section 304 of the 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 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.
The primary purpose of the country of origin marking statute
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., 27
CCPA 297, 302, C.A.D. 104 (1940). The clear language of section
1304 requires 'conspicuous' marking, and to this end section
134.41(b), Customs Regulations (19 CFR 134.41(b)), further
provides, in part, that the ultimate purchaser in the U.S. must
be able to find the marking easily and read it without strain.
Regarding the concept of conspicuousness, where locations
other than the country of origin of the merchandise are identi-
fied on an imported article or its container, section 134.47,
Customs Regulations (19 CFR 134.47), further provides that:
[w]hen as part of a trademark or trade name or as part of a
souvenir marking, the name of a location in the United
States or "United States" or "America" appear, 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 or in some other conspicuous location.
Regarding the location of where footwear should be marked to
be considered conspicuous, we have previously stated that a
country of origin marking at the base of the tongue label or on
the inside of the heel is normally considered a conspicuous
marking, unless foreign symbols (other than that of the country
of origin) prominently appear on the article and/or its
container. C.S.D. 86-5, 20 Cust.Bull. 585, 586 (1986), and
Headquarters Ruling Letter (HRL) 730597 dated August 13, 1987
(athletic footwear marked with a sewn in label located 2/3 of the
way down the tongue found not to be conspicuously marked).
However, within the context of 19 CFR 134.47, we have stated that
so long as the country of origin marking was conspicuous enough
so that the ultimate purchaser could locate it easily upon a
casual inspection, i.e., the marking information appears in its
usual location, and would not be mislead by the other location
references, the marking would be considered conspicuous for
purposes of the marking laws. C.S.D. 88-38, 22 Cust.Bull. 420,
422 (1988), and C.S.D. 89-91, 23 Cust.Bull. 764, 766 (1989).
Regarding conspicuous country of origin marking for purposes
of 19 CFR 134.47 where trademarks are concerned, in HRL 730070
dated March 1987, we found that, where the registered trademark--
which used the initials "USA"--was displayed in several locations
on footwear and the country of origin was similarly marked in
three places (the sock lining, the tongue and inside the collar
label), the shoe was conspicuously marked as required by section
134.47, as such marking was readily visible even considering the
presence of the prominently displayed "USA" emblems.
Given the above and after examining the shoe samples
submitted, we find in this case that the various country of
origin markings are sufficiently conspicuous for purposes of 19
U.S.C. 1304 and 19 CFR 134.47, in that the markings are readily
visible; the information appearing in the usual location for
footwear.
Based on an examination of the shoes submitted, we find that
the provisions of 19 CFR 134.41(b) and 19 CFR 134.47 are
satisfied by the present methods and locations of marking the
country of origins on the shoes. This determination is based on
the following: first, the markings in contrasting colors or
raised letters are easy to find and the print point size is large
enough to be read without strain; second, the shoe samples are
marked with their country of origin preceded by "MADE IN," as
required by this section of the regulations; and, third, marking
by means of either branding, injection molding, or ink-stamping,
serves to mark the country of origin on the footwear articles as
indelibly and permanently as the nature of the article permits.
HOLDING:
Based on the information and samples submitted, the
locations of the country of origin marking on the shoes--on
either the bottom of the sole or the inside at the heel--in
relation to the registered trademark used, are conspicuous enough
for the ultimate purchaser to easily find and read them.
Accordingly, the proposed country of origin markings satisfy the
requirements of 19 U.S.C. 1304 and 19 CFR 134.47.
Sincerely,
John Durant, Director
Commercial Rulings Division