Mar-2-05 CO:R:C:V 734277 AT
Bernard D. Liberati
Morris, Friedman & Company
320 Walnut Street
Philadelphia, Pennsylvania 19106-3883
RE: Country of origin marking of tin containers imported from
Hong Kong; adhesive labels; conspicuous; trade name marking;
close proximity; U.S. locality; HQ 722064
Dear Mr. Liberati:
This is in response to your letter dated July 23, 1991, on
behalf of Keller-Charles of Philadelphia, requesting a ruling on
the country of origin marking of tin containers imported from
Hong Kong. A sample tin container was also submitted with your
letter.
FACTS:
You state that Keller-Charles of Philadelphia intends to
import empty tin containers from Hong Kong. The tin container
measures approximately 2 1/2" x 3 3/8" x 1 5/8" and has a bank
building design painted all around the surface area except the
bottom. An adhesive plastic label is securely affixed to the
bottom middle of the container. On the label the words "Keller-
Charles of Philadelphia" are printed in black lettering
approximately 5 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) in size. Also, the words "Made in Hong
Kong" appear directly below, in black lettering approximately 4
point in size. No other marking appears on the container. You
also advised us in a telephone conversation on December 9, 1991,
that the marking "Keller-Charles of Philadelphia" is the trade
name for this particular company. In support, documentary
evidence in the form of a telecopy (fax) dated December 9,1991,
was submitted by Keller-Charles of Philadelphia stating their
official registered trade name is "Keller-Charles of
Philadelphia". You claim that although the "Made in Hong Kong"
marking is smaller than the word "Philadelphia", it is still in
comparable size, conspicuous and permanent, and therefore is an
acceptable country of origin marking.
ISSUE:
Whether the country of origin marking 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 "Philadelphia" printed on the
adhesive label.
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, if the question concerns
a trade name or trademark, 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, it is our opinion that the less stringent
requirements of 19 CFR 134.47 apply. The word "Philadelphia"
which appears on the adhesive label is part of the trade name
"Keller-Charles of Philadelphia". In HQ 722064 (August 3, 1983),
Customs ruled that 19 CFR 134.47 would apply only if the word
"Paris" was part of the registered trade name. Otherwise, 19 CFR
134.46 would be the applicable provision. Here, because the word
"Philadelphia" is part of the trade name "Keller-Charles of
Philadelphia", section 134.47 marking requirements must be
satisfied. Accordingly, the actual country of origin (Hong Kong)
only needs to satisfy the general standards of conspicuousness.
The country of origin must also be preceded by the words "Made
in", "Product of", or words of similar meaning.
In this case, the words "Made in Hong Kong" appear directly
below the "Keller-Charles of Philadelphia" marking. Also,
examination of the tin container indicates that the adhesive
label is located in a conspicuous location is legible and is
permanent in that the label is securely affixed. Based on these
considerations we find that the adhesive label satisfies the
marking requirements of 19 CFR 134.47.
HOLDING:
The proposed country of origin marking of imported tin
containers, as described above, satisfies the marking
requirements of 19 U.S.C. 1304 and section 19 CFR 134.47
Sincerely,
John Durant, Director
Commercial Rulings Division