MAR-2-05 CO:R:C:V 734202 RSD
Mr. Mark J. Milne
Director, Import/Export Administration
Air Express International
Hangar 5, JFK International Airport
Jamaica, New York 11430
RE: Country of origin marking for plastic promotional pens,
conspicuous, legible, give-aways, ultimate purchaser; 19 CFR
134.41; HQ 733940
Dear Mr. Milne:
This is in response to your letter to the Customs
Information Exchange in New York, dated November 5, 1990, on
behalf of your client, European Promotion, requesting a ruling on
the country of origin marking of plastic promotional pens. Your
letter was forwarded to Customs Headquarters for a reply. Three
sample pens were received for our review.
FACTS:
European Promotion sells pens to various companies who in
turn give them away to their clients or customers as promotional
giveaways or as advertisements. The pens are manufactured in
Germany and have a plastic body and clip. The first sample is
called a "necklace pen" because it has a string attached to it,
so that the pen can be worn around a person's neck. The pen
resembles a lolly-pop with a removable cap. An advertising
message will be printed on the round cap. The country of origin
marking is on the bottom section of the cap of the pen in non-
contrasting raised cast-in-mold letters of about 1/16 of an
inch. (This is equivalent to less than 4 point type). The
second sample pen is a retractable ball point pen with a push
button on top of the pen and a white plastic barrel and a red
plastic clip. The country of origin marking is on the side of
the clip in raised non-contrasting cast-in-mold letters of less
than 1/16th of an inch (less than 4 point type). The pen must be
held close to the viewer's eye before the country of origin
marking becomes visible. The country of origin marking also
appears on the bottom side of the clip. The third sample is also
a retractable ball point pen, with a push button on top, which
has a blue plastic barrel and a blue plastic clip. The country
of origin marking is in non-contrasting cast-in-mold lettering of
less than 1/16th of an inch (less than 4 point) on the side of
the clip and must be viewed closely in order to be able to read
it. The pen is also marked with its country of origin, Germany,
underneath the clip in raised non-contrasting cast-molded-in
letters of less than 1/16th an inch (less than 4 point). You ask
whether the sample pens are legally marked, and if not whether
marking the polybags with the country of origin would bring the
pens into compliance.
ISSUES:
Is the country of origin marking on the three sample pens
sufficiently legible and conspicuous to satisfy the requirements
of the marking law?
Who is the ultimate purchaser of the pens that are given
away as promotional handouts?
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 (1940). 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. 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, we indicated that there are
certain factors that need to be considered in determining if the
country of origin marking on an article, such as a pen, is
conspicuous within the meaning of 19 CFR 134.41 and 19 U.S.C.
1304. Among the factors that should be considered is the size of
the marking, the location of the marking, whether the marking
stands out, and the legibility of the marking. The size of the
marking should be large enough so that the ultimate purchasers
can easily see the marking without strain. The location of the
marking should be in a place on the pen where the ultimate
purchaser could expect to find the marking or where he/she could
easily notice it from a causal 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
concerns the clarity of the letters and whether the ultimate
purchaser could read the letters of the marking without strain.
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 some cases, a marking may be
unacceptable even when it is in a large size because the letters
are too hard to read or it is in a location where it would not be
easily noticed. In other cases, even if the marking is small,
the use of contrasting colors, which make the letters
particularly stand out, could compensate to make the marking
acceptable.
In applying these factors to the three sample pens, we first
find that the size of the markings, less than 1/16 an inch, (less
than 4 point type) is small and difficult to see. The ultimate
purchaser is likely to have to strain to see the markings. We
also note that the country of origin markings are not in a
contrasting color and do not stand out. With respect to the
location of the marking on the pens, we find that an ultimate
purchaser is not likely to notice them on the side of the clip or
underneath the clip on two of the sample pens and on the pen cap
of the "necklace pen" from a causal examination of these
articles. Based on the combination of these factors, we find
that the country of origin marking on the pens do not satisfy
the requirements of 19 CFR 134.41 and 19 U.S.C. 1304.
Accordingly, we find that the marking on the sample pens are not
acceptable.
You inquire who is the ultimate purchaser of the pens. 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. 19 CFR 134.1(d)(2) also indicates that if
the imported article is distributed as a gift the recipient is
the "ultimate purchaser." Consequently, although the pens may be
given away by businesses as promotions or advertisements, under
the Customs regulations the recipient of the pens, not the
importer, would be considered the ultimate purchaser.
Therefore, the pens must be marked permanently, legibly and
conspicuously, to indicate their country of origin to their
recipient. See Pabrini, Inc. v. United States, 630 F.Supp 360
(C.I.T., 1986). Marking only the polybags in which the pens are
imported with the country of origin is not acceptable unless the
Customs officials at the port of entry are satisfied that the
pens will remain in the unopened properly marked polybags until
they reach their final recipient.
HOLDING:
Because the pens are being given away, under 19 CFR
134.1(d)(2) the ultimate purchaser of the pens is their
recipient. The pens must be marked to indicate to their
recipient their country of origin. The country of origin
markings on the sample pens are not conspicuous and legible and
are not acceptable under 19 CFR 134.41 and 19 U.S.C. 1304.
Sincerely,
John Durant, Director
Commercial Rulings Division