MAR-2-05 CO:R:C:V 734066 GRV
John B. Pellegrini, Esq.
Ross & Hardies
529 Fifth Avenue
New York, N.Y. 10017-7075
RE: Location of country of origin marking on multiple pairs of
removable shoe footbeds (insoles), one pair of which bears,
as part of a trademark, a locality other than that of the
country of origin. 19 CFR 134.1(d) (ultimate purchaser); 19
CFR 134.41 (conspicuousness); 086861 (distinguished); T.D.
86-129; 19 CFR 134.47 (trademark application filed); C.S.D.
88-38; C.S.D. 89-91; 733691
Dear Mr. Pellegrini:
This is in response to your letter of February 28, 1991, on
behalf of Toddler U. Inc., requesting a ruling regarding the
country of origin marking on multiple pairs (3) of footbeds
(insoles) that will be packaged (boxed) with domestically pro-
duced children's shoes. One pair of footbeds will bear, in the
form of a company trademark whose registration has been applied
for, a locality other than the country of origin. Samples of the
marked footbed pairs were submitted for examination.
FACTS:
Your client sells footwear exclusively in infants and chil-
dren's sizes. While the shoes are produced in the U.S., remov-
able footbeds (insoles)--an integral part of the shoe--in three
sizes (narrow, medium and wide), will be manufactured in Taiwan.
Regarding the marketing of the footbeds, three pairs of footbeds
(one in each of the sizes indicated) will be packaged with each
pair of children's shoes. The medium-sized footbeds will be
inserted in the shoes by your client, with written instructions
to the retail outlet to present the medium-sized footbeds as part
of the footwear and not to present the other two pairs of
footbeds (narrow and wide) unless needed for a proper fit;
barring this sizing need they are to be discarded.
The country of origin of the footbeds is correctly indicated
--Made in Taiwan--on the bottom of each footbed in raised letters
of approximately 8-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), that are
created during the footbeds' manufacture. Glued onto the topside
of the medium-sized footbed only, at the heel, will be a fabric
label marked "TODDLER UNIVERSITY AMERICAN CLASSICS," ("American
Classics") which is printed in approximately 16-point print (<
inch letters) in contrasting colors. (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 Photoen-
graving" (printings since 1985) in volume 14 of The New Encyclo-
paedia Britannica (15th ed., 1975)). Concerning this latter
designation, you state that it is in the process of becoming a
registered trademark and, to evidence this status, you submitted
a copy of the Notice of Publication, issued by the Superintendent
of Documents.
You ask us to rule that the submitted samples satisfy the
requirements of 19 U.S.C. 1304 and 19 CFR Part 134. Alternative-
ly, you ask us to rule that the footbeds are excepted from
marking under 19 U.S.C. 1304(a)(3)(H).
ISSUES:
I. Whether the location of the country of origin marking on the
bottom of each footbed in general meets the marking require-
ments of 19 U.S.C. 1304 and 19 CFR 134.11 and 134.41(b).
II. Whether the location of the country of origin marking on the
bottom of the medium-sized footbed pair in particular, given
that the trademark label is located on the topside of the
footbed, at the heel, meets the marking 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 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.
The primary purpose of the country of origin marking statute
is to "mark the goods so that at the time of purchase the ulti-
mate purchaser may, by knowing where the goods were produced, be
able to buy or refuse to buy them, if such marking should influ-
ence his will." United States v. Friedlaender & Co., 27 CCPA
297, 302, C.A.D. 104 (1940). The "ultimate purchaser" is defined
generally as the last person in the U.S. who will receive the
article in the form in which it was imported. 19 CFR 134.1(d).
Example (3) of this section provides that if an article is to be
sold at retail in its imported form, the purchaser at retail is
the "ultimate purchaser." (Emphasis supplied).
In this case, the article(s) imported are multiple pairs of
various-sized, footbed components that are designed to be util-
ized by retail store outlets in the proper fitting of shoes sold
to retail consumers. As the article bought by the retail consu-
mer is a pair of shoes fitted with only one pair of footbeds, we
feel it would be inappropriate to consider the retail purchaser
the ultimate purchaser in this case. Accordingly, as the retail
store outlets will be the last person in the U.S. to receive the
imported article(s) in the form in which they are imported
(multiple units), i.e., three pairs of various-sized footbeds
will be packaged with each pair of children's shoes, it is
considered the ultimate purchaser in this case for purposes of
implementing the country of origin marking laws.
Regarding the concept of conspicuousness, in Headquarters
Ruling Letter (HRL) 086861 dated June 2, 1990, we considered
whether a country of origin marking on the back of a label sewn
into ballet slippers was conspicuous within the meaning of the
marking laws. Citing prior rulings which found that country of
origin markings on the backs of labels were not easy to find and,
therefore, were not conspicuous, we stated that the ultimate
purchaser should not have to fold over the label to read the
country of origin marking. Accordingly, we found that the coun-
try of origin marking on the back of the sewn-in label was not
conspicuous within the meaning of the marking laws and that the
marking should be placed on the front of the label. Applying
this holding to a single pair of footbeds put up for retail sale
would require that the country of origin marking be relocated to
the topside of the footbeds. However, we are persuaded in this
case that sufficient circumstances and conditions are present to
warrant a different finding, and HRL 086861 is distinguished
accordingly.
Further concerning the concept of conspicuousness, where
locations other than the country of origin of the merchandise are
identified 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.
As indicated above, an application for trademark registra-
tion has been filed with the U.S. Patent and Trademark Office for
the phrase "Toddler University American Classics." Although
Customs is reviewing the issue of whether evidence of trademark
registration is required to invoke the provisions of 19 CFR
134.47 (as opposed to the more stringent requirements of 19 CFR
134.46), until publication of a contrary view, evidence of
trademark registration is not required to invoke the provisions
of 19 CFR 134.47.
In determining whether or not a particular country of origin
marking is sufficiently conspicuous for purposes of this regula-
tion, 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, C.S.D. 88-38, 22 Cust.Bull. 420
(1988) (country of origin marking of T-shirts bearing a trade-
mark), and consider the sophistication of the potential purchaser
and the degree of scrutiny the purchaser performs to determine
the country of origin of the article. See, T.D. 86-129, 20
Cust.Bull. 380 (1986).
Regarding the location of where footwear articles should be
marked to be considered conspicuous 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 misled 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), C.S.D. 89-91, 23 Cust.
Bull. 764, 766 (1989), and HRL 733691 (dated May 24, 1991,
finding in the case presented that the country of origin marking
on the soles of some shoes, while the trademark was located on
the inside of the shoe on the sock liner at the heel, was readily
visible; the information appearing in the usual location for
footwear).
The location of the country of origin marking in general
Based on an examination of the samples submitted and for the
other reasons which follow, we are of the opinion that the coun-
try of origin marking on the bottom of each footbed in this case
is conspicuous enough to satisfy the provisions of 19 CFR 134.11
and 19 CFR 134.41(b). First, we believe that the ultimate
purchaser can easily find the country of origin marking on the
bottom of each footbed by a casual inspection which merely
requires that it turn over any one of the loose packaged foot-
beds. Second, the ultimate purchaser can read the mark without
strain, as the marking is printed in approximately 8-point print.
Third, because the marking is in raised letters created during
their manufacture, we believe this condition makes the mark as
indelible and permanent as the nature of the article permits.
Fourth, we are cognizant of the class of ultimate purchasers in
this case: retail store outlets--business entities. Presumably,
this class of ultimate purchaser would routinely inspect its
merchandise, i.e., subject it to a higher level of scrutiny than
a retail purchaser, before offering it up for sale to downstream
consumers. Fifth, we note that the ultimate purchaser is
provided the footbed components under circumstances that give it
the proper notice concerning the country of origin of the
merchandise, i.e., even though one pair of footbeds is already
inserted into the particular pair of shoes, the presence of the
other two pairs of footbeds and written instructions to dispose
of them if not needed for a proper fit offer sufficient
guarantees that the ultimate purchaser will be aware of the
country of origin of the footbed components.
The location of the country of origin marking in relation to the
trademark
Regarding the location of the country of origin marking on
the pair of medium-sized footbeds in particular, which have the
fabric label "TODDLER UNIVERSITY AMERICAN CLASSICS" glued onto
their topsides at the heel and are inserted in the shoes, again
for the reasons given above, we are convinced in this case that
the ultimate purchaser would not be misled by the reference to
"AMERICAN" and that the country of origin marking is conspicuous
enough to satisfy the provisions of 19 CFR 134.11 and 19 CFR
134.47. As this is a case of first impression concerning the
usual location for the marking of multiple, removable footbeds,
where only one pair contains a trademark, we are satisfied that
locating the country of origin marking on the bottom of each
footbed is sufficiently conspicuous to meet the requirements of
19 U.S.C. 1304 and 19 CFR 134.47; the absence of the trademark
from the other two pairs of footbeds (narrow and wide) seems to
us to raise the proper notice to the ultimate purchaser that the
footbeds are removable and can be inspected.
Having determined that the submitted footbed samples are
properly marked, we do not address the issue of whether they are
entitled to any exceptions from marking.
HOLDING:
Based on the information and samples submitted and given the
circumstances under which the imported footbed articles will be
made available to the ultimate purchaser (the retail store
outlet)--in three sizes accompanying each pair of shoes, we find
that the location of the country of origin marking on the bottom
of each footbed, both on the two sizes that do not have the
"TODDLER UNIVERSITY AMERICAN CLASSICS" fabric label attached (the
narrow and wide sizes) and on the middle size which does have the
trademark (applied for) attached, is conspicuous enough so that
the ultimate purchaser can easily find and read it. Accordingly,
the proposed country of origin marking satisfies the provisions
of 19 U.S.C. 1304, 19 CFR 134.11, 19 CFR 134.41(b), and 19 CFR
134.47.
Sincerely,
John Durant, Director
Commercial Rulings Division