Mar-2-05 CO:R:C:V 734175 AT
Walter E. Spiegel, Esq.
Kilpatrick & Cody
Suite 800
Washington, D.C. 20005
RE: Country of origin marking of baseball gloves imported from
either China, Taiwan or Thailand; conspicuous; trademark;
close proximity; U.S. locality; HQ 722064; HQ 733941
Dear Mr. Spiegel:
This is in response to your letters dated May 15, July 30,
September 19 and September 27, 1991, on behalf of the Spalding &
Evenflo Co. (Spalding), requesting a ruling on the country of
origin marking of four styles of baseball gloves ("Frank Viola",
"Prime Time", "Lloyd Moseby" and "Air Flex" glove). Samples of
the "Frank Viola" "Prime Time" and "Lloyd Moseby" gloves with the
proposed markings were submitted with your letter.
FACTS:
You state that Spalding intends to import four styles of
baseball gloves from either China, Taiwan or Thailand. The
"Frank Viola", "Prime Time" and "Lloyd Moseby" styles are marked
in the heel of the glove with the trademark "Spalding." Directly
under the word Spalding, in smaller lettering, is the phrase
"America's 1st Baseball Company". You claim that the phrase
"America's 1st Baseball Company" is a registered trademark of
Spalding (Registration No. 1454761, August 25, 1987). Evidence
of such registration was submitted. You also state that Spalding
has used this phrase since August 7, 1985. Each of these styles
of gloves are marked with the country of origin in different
locations on the glove. The "Frank Viola" glove is marked with
the words "Made in China" on the welt of the back of the little
finger in black lettering approximately 9 point (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).
The "Prime Time" glove has a tag sewn into the lining of the
glove at the heel marked with the words "Made in Thailand" in
black lettering approximately 7 point. The "Lloyd Moseby" glove
is stamped on the heel of the glove with the words "Made in
Taiwan" in gold lettering approximately 9 point. Although a
sample of the "Air Flex" glove was not submitted for examination
you state that the heel of the glove will be marked with the
trade name Spalding. Directly under the trade name Spalding,
will appear the phrase "World's 1st Baseball Company" You also
indicate that this glove will be marked in a conspicuous
location with the country of origin.
ISSUE:
Whether the country of origin marking on the four styles of
gloves as described above satisfies the requirements of 19
U.S.C. 1304 and 19 CFR Part 134?
LAW AND 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.
Congressional intent in enacting 19 U.S.C. 1304 was that the
ultimate purchaser should be able to know by an inspection of the
marking on the imported goods the country of which the goods is
the product. The evident purpose 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 C.C.P.A. 297 at 302, C.A.D. 104 (1940).
Part 134, Customs Regulations (19 CFR Part 134), implements
the country of origin marking requirements and exceptions of 19
U.S.C. 1304. Section 134.1(d), Customs Regulations (19 CFR
134.1(d)) defines ultimate purchaser as "generally the last
person in the U.S. who will receive the article in the form in
which it was imported."
In determining whether the marking is acceptable, Customs
will take into account the presence of words or symbols on an
article which may mislead the ultimate purchaser as to the
country of origin. Consequently, if the words "United States,"
or "America," the letters "U.S.A.," any variation of such words
or letters, or the name of any city or locality other than the
country of origin appear on the imported article, special marking
requirements are triggered."
The marking issue raised in this case involves the
application of two related provisions of the marking regulations,
19 CFR 134.46 and 19 CFR 134.47. The application of the special
marking requirements set forth in these provisions is triggered
by the presence of the word "America's" printed on the heel of
the "Frank Viola", "Prime Time" and "Lloyd Moseby" styles of
gloves. The phrase "World's 1st Baseball Company" which will
appear on the "Air Flex" style glove, does not trigger either 19
CFR 134.46 or 134.47. Accordingly, the country of origin marking
on the "Air flex" glove need only to meet the general
requirements of 19 U.S.C. 1304 .
Both provisions serve the same purpose of preventing
ultimate purchasers from being misled or deceived when the name
of a country or place other than the country of origin appears on
an imported article or its container. The critical difference
between the two provisions is that section 134.46 requires that
the name of the actual country of origin appear "in close
proximity" to the U.S. reference and in lettering of at least
comparable size. By contrast, 134.47 requires less, providing
that when the name of a place other than the country of origin
appears as part of a trademark or trade name or as part of a
souvenir marking, the name of the actual country of origin must
appear in close proximity to the place "or in some other
conspicuous location". In other words, the country of origin
marking needs only to meet the general standard of
conspicuousness. In either case, the name of the country of
origin must be preceded by "Made in," "Product of," or words of
similar meaning.
As applied here, due to the fact that "America's 1st
Baseball Company" is a trademark of Spalding the less stringent
requirements of 19 CFR 134.47 apply. Accordingly, the actual
country of origin of the gloves must satisfy the general
standards of conspicuousness and must be preceded by the words
"Made in", "Product of", or words of similar meaning.
As provided in section 134.41(b), Customs Regulations (19
CFR 134.41(b)), the country of origin marking is considered
conspicuous if the ultimate purchaser in the U.S., is able to
find the marking easily and read it without strain.
In HQ 733940 (October 24, 1991), Customs set forth some
factors to be considered in determining if the country of origin
marking on imported pens was conspicuous within the meaning of 19
CFR 134.41 and 19 U.S.C. 1304. Customs stated that among the
factors to be considered was the size of the marking, the
location of the marking, whether the marking stands out, and the
legibility of the marking. Customs also stated that the size of
the marking should be large enough so that the ultimate
purchaser can easily see the marking without strain. The
location of the marking should be in a place where the ultimate
purchaser could expect to find the marking or where he/she could
easily notice it from a casual inspection. Whether the marking
stands out is dependent on where it appears in relationship to
other print on the article and whether it is in contrasting
letters to the background. The legibility of the marking is
determined by the clarity of the letters and whether the ultimate
purchaser could read the letters of the marking without strain.
Furthermore, Customs said that no single factor should be
considered conclusive by itself in determining whether a marking
meets the conspicuous requirement of 19 CFR 134.41 and 19 U.S.C.
1304. Instead, it is the combination of these factors which
determines whether the marking is acceptable.
In applying these factors to the three sample gloves, we
first find that the words "Made in China," "Made in Taiwan" or
"Made in Thailand" which appear either above the welt on the
back of the little finger, the back of the heel or on a tag sewn
into the inner heel are easily noticeable from a casual
inspection of the glove. The country of origin markings can also
be easily seen since the size of the lettering is very large
(either 7 or 9 point) and is in contrasting color (either black
or gold). Furthermore, the marking is clear and can be easily
read without strain. Considering the above factors together, we
find that the country of origin marking on the "Frank Viola",
"Prime Time" and "Lloyd Moseby" gloves satisfies the conspicuous
requirements of 19 CFR 134.41 and 19 U.S.C. 1304.
HOLDING:
The proposed country of origin marking on the submitted
sample baseball gloves (Styles "Frank Viola", "Prime Time", and
"Lloyd Moseby") as described above, satisfies the marking
requirements of 19 U.S.C. 1304 and section 19 CFR 134.47.
The phrase "World's 1st Baseball Company" which is to
appear on the "Air Flex" style glove does not trigger either the
marking requirements of 19 CFR 134.46 or 134.47. Accordingly,
the country of origin marking needs only to meet the general
standard of conspicuousness provided in 19 CFR 134.41.
Sincerely,
John Durant, Director
Commercial Rulings Division