Mar-2-05 CO:R:C:V 735024 AT
Andrew G. Halpern, Esq.
Strasburger & Price, L.L.P.
901 Main Street
Suite 4300
Dallas, Texas 75202
RE: Country of origin marking of reading glasses imported from
various foreign countries; conspicuous; close proximity;
U.S. locality; trademark/trademark application; 19 CFR
134.46; 19 CFR 134.47; HQ 734469; refers ultimate purchaser
to look for origin in another location
Dear Mr. Halpern:
This is in response to your letters dated March 4, September
1 and November 22, 1993, on behalf of The Bonneau Company
(Bonneau), requesting a ruling on the country of origin marking
of imported reading glasses with hang tags attached before or
after importation into the U.S. A sample pair of reading glasses
and two hang tags with the proposed marking which are to be
attached were submitted with your letters.
FACTS:
You state that Bonneau intends to import reading glasses
from various countries to be sold at retail stores in the U.S.
You also state that Bonneau's normal course of business is to
source its products from manufacturers overseas and receive
direct shipment from the manufacturers at the port of Dallas-
Fort Worth, Texas. You claim that each of these manufacturers is
responsible for marking the earpiece of each pair of reading
glasses with the country of origin. The country of origin
marking is designated on the reading glasses at the time of
manufacture by imprinting the marking into the plastic or metal
earpiece. Examination of the sample reading glasses indicates
that the country of origin marking is printed on the earpiece in
lettering approximately 4.5 point (a point is a unit of
measurement approximately equal to 0.01384 inches or nearly 1/72
inches and all type sizes are a multiple of this unit).
You also state that because reading glasses are considered
medical devices, Food and Drug Administration (F.D.A.) labeling
regulations require the disclosure of the manufacturer or
distributor and a U.S. place of business on a label. In order to
facilitate Bonneau's compliance with the F.D.A. labeling
requirements, Bonneau proposes to have hang tags attached to the
nose piece of each pair of reading glasses by the manufacturer or
by Bonneau in the U.S. The front of the first sample hang tag is
marked with the words "SparePair USA" in blue lettering
approximately 7.5 point. You state that Bonneau has filed an
application dated May 7, 1993 for trademark registration with the
United States Patent and Trademark Office for the trademark
"SparePair USA" (a copy of the application was submitted). The
front side of the other sample hang tag is marked with the words
"PennOptics" (approximately 13 point lettering) and Pennsylvania
Optical (approximately 4.5 point lettering). You indicate that
"PennOptics is a registered trademark (Registration No.
1,540,276) and "Pennsylvania Optical" is a trade name of the
Bonneau Company. Other information such as the price, power of
the lenses (diopter) and style of glasses also appears on the
front side of both labels.
Bonneau proposes to mark the back portion of the hang tags
with the words "Made in Country Indicated On Glasses" in black
lettering approximately 4.5 point followed by the words "Bonneau
Company, Dallas, TX 75234, U.S.A." in the same type size.
You contend that since each pair of reading glasses is
properly marked with the country of origin on the earpiece the
proposed marking "Made in Country Indicated On Glasses" printed
on the back of the hang tag satisfies the marking requirements of
19 U.S.C. 1304 and 19 CFR Part 134.
ISSUES:
Does the marking on the reading glasses as described above
satisfy the country of origin marking requirements set forth in
Section 304 of the Tariff Act of 1930, as amended?
Does the proposed marking on the hand tag marked in the
manner described above satisfy the marking requirements of 19 CFR
134.46 and 19 CFR 134.47?
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." The definition then gives examples of
who might be the ultimate purchaser if the imported article is
used in the manufacture, if the imported article is sold at
retail in its imported form and if an imported article is
distributed as a gift. If an imported article is to be sold at
retail in its imported form, the purchaser at retail is the
ultimate purchaser. In this case, the ultimate purchaser of the
reading glasses is the consumer who purchases the product at
retail.
Are The Reading Glasses Conspicuously Marked With The Country Of
Origin?
Section 134.41, Customs Regulations (19 CFR 134.41),
provides that 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 this case, we find that the country of origin marking
printed on the earpiece is conspicuous. The country of origin
marking is easy to find since it is placed on the earpiece; a
location where an ultimate purchaser would expect to find such a
mark prior to purchasing the sunglasses. Furthermore, the
country of origin marking, printed in approximately 4.5 point
lettering, is both easy to find and can be read without strain.
Does The Marking On The Hang Tag Marked In The Manner Described
Above Satisfy The Marking Requirements Of 19 CFR 134.46 AND 19
CFR 134.47?
The second issue presented in this case is whether the
proposed marking "Made in Country Indicated On Glasses" printed
on the attached hang tag is an acceptable country of origin
marking in view of the fact that the words "SparePair USA" or "Pennsylvania Optical" appear on either the front side of the
hang tag and the words "Bonneau Company, Dallas, TX, U.S.A."
appear on the back of the hang tag directly above or below the
country of origin marking.
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.
Section 134.46, Customs Regulations (19 CFR 134.46),
requires that when the name of any city or locality in which the
article was manufactured or produced, appears on an imported
article or its container, there shall appear, legibly, and
permanently, in close proximity to such words, letters or name
and in at least a comparable size, the name of the country of
origin preceded by "Made in," "Product of," or other words of
similar meaning. The purpose of this section is to prevent the
possibility of misleading or deceiving the ultimate purchaser as
to the actual origin of the imported goods. Section 134.47,
Customs Regulations (19 CFR 134.47), requires a slightly less
restrictive marking than 134.46 when the location name other than
the country of origin appears as part of a trademark or trade
name. Under 19 CFR 134.47, 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 actual country of
origin must appear in close proximity to the place name "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 meet the general standard of
conspicuousness. Both 134.46 or 134.47, require that the name of
the country of origin must be preceded by "Made in," Product of,"
or words of similar meaning.
The words "SparePair USA", and "Pennsylvania Optical" which
appear on the front side of the hang tags trigger the special
marking requirements of 19 CFR 134.47 in that they are either a
trademark or trade name. With respect to the mark "SparePair
USA", Customs has ruled that the filing of a trademark
registration request, as exhibited here, is considered sufficient
evidence to establish a trademark for purposes of 19 CFR 134.47.
See, HQ 734455 (July 1, 1992). Thus, the country of origin
marking needs only meet the general standard of conspicuousness. For the reasons stated below, we find that the marking "Made in
Country Indicated On Glasses" printed on the back of the hang
tags satisfy the requirements of 19 CFR 134.47. However, if for
some reason the application for registration is denied, then the
requirements of 19 CFR 134.46 will have to be complied with.
The special marking requirements set forth in section 134.46
are triggered by the presence of the words "Dallas, TX U.S.A."
printed directly above the country of origin marking.
Accordingly, the actual country of origin of the reading glasses
must appear "in close proximity" to the U.S. reference and in
lettering of at least a comparable size. Therefore, the critical
issue presented in this case is whether the marking "Made in
Country Indicated On Glasses" printed directly below the words
"Dallas, TX U.S.A." along with the country of origin marking on
the frames satisfies the country of origin marking requirements
of 19 CFR 134.46.
In HQ 734469 (September 22, 1992), Customs ruled that hang
tags which were affixed to conspicuously marked sunglasses and
marked with the words "Country of Origin Indicated On Sunglasses"
in close proximity and in at least a comparable size to the non-
origin geographical reference "Dallas, TX U.S.A." satisfied the
country of origin marking requirements of 19 CFR 134.46.
Similarly, in this case, we find that the proposed method of
marking satisfies the requirements of 19 CFR 134.46. The words
"Made in Country Indicated On Glasses" appears in close proximity
and at least in comparable size to the U.S. reference "Dallas,
Texas U.S.A." Moreover, as in HQ 734469, the actual country of
origin is conspicuously marked on the earpiece of each pair of
reading glasses. Because the country of origin marking "Made In
Country Indicated on Glasses" is conspicuously located on the
back of the hang tags the marking requirements of 19 CFR 134.47
are satisfied as well.
HOLDING:
The proposed method of marking hang tags attached to
conspicuously marked reading glasses by the manufacturer or
Bonneau in the U.S., as described above, satisfies the
requirements of 19 U.S.C. 1304 and 19 CFR Part 134.
Sincerely,
John Durant, Director
Commercial Rulings Division