MAR-2-05 CO:R:C:V 733046 KG
Thomas M. Greene, Esq.
Greene & Hoffman, P.C.
184 High Street
Boston, Massachusetts 02110
RE: Country of origin marking of imported toys
Dear Mr. Greene:
This is in response to your letter of January 9, 1990,
requesting a country of origin ruling regarding imported toys.
FACTS:
Your client is a U.S. toy company that imports toys. This
company owns the trademark "TCA Toy Corporation Of America." The
company places its trademark on every panel of the boxes in which
imported toys are sold but only want to place the country of
origin of the imported toys on one panel of the box.
You submitted a sample flattened cardboard box which would
hold a doll. The trademark "TCA Toy Corporation Of America"
appears on four panels of the box. On one side panel, which is
about 18 inches long, there is a Hong Kong address below the
trademark and in the opposite corner, the phrase "Made in China."
The lettering of the Hong Kong address is about 1/8 inch in
height, and the lettering of the country of origin mark is
slightly higher but less than 1/4 inch in height.
ISSUE:
Whether the cardboard box submitted would satisfy the
country of origin marking requirements of section 304 of the
Tariff Act of 1930, as amended.
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. The Court of
International Trade stated in Koru North America v. United
States, 701 F.Supp. 229, 12 CIT (CIT 1988), that: "In
ascertaining what constitutes the country of origin under the
marking statute, a court must look at the sense in which the term
is used in the statute, giving reference to the purpose of the
particular legislation involved. The purpose of the marking
statute is outlined in United States v. Friedlaender & Co., 27
CCPA 297 at 302, C.A.D. 104 (1940), where the court stated that:
"Congress intended 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."
Part 134, Customs Regulations (19 CFR Part 134), implements
the country of origin marking requirements and exceptions of 19
U.S.C. 1304. 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 in the U.S., or the name of any
foreign country or locality other than the country of origin,
appears on an imported article in such a way as to be misleading
to the ultimate purchaser, special marking requirements are
triggered. Section 134.46, Customs Regulations (19 CFR 134.46),
requires that in such case, the name of the country of origin
must appear legibly, permanently, and in close proximity to such
words, letters, or name, and in at least a comparable size, the
name of the country of origin mst appear preceded by "Made
in,""Product of," or other words of similar meaning.
Section 134.47, Customs Regulations (19 CFR 134.47),
provides that when as part of a trademark or trade name or as
part of a souvenir marking, the name of a location in the U.S.
appears, 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. In such circumstances, no comparable size requirement
exists.
The issue presented is the proper marking of a box
containing the company trademark "TCA Toy Corporation Of America"
in four different panels on the box, a Hong Kong address on one
panel and the country of origin marking "Made in China" in one
place on the same panel as the Hong Kong address. The Hong Kong
address, which differs from the country of origin and could be
confusing or misleading, triggers the requirements of 19 CFR
134.46. Customs recently ruled in HQ 733084 (March 19, 1990),
that the close proximity requirement of 19 CFR 134.46 means that
the country of origin marking must appear on the same panel as a
U.S. address so that the information is viewable in one
inspection of one panel of the box. In this case, the country of
origin marking appears in the opposite corner of the 18 inch long
panel. Given the size of the panel and the size of the print of
the country of origin marking, it is likely that a consumer would
be confused by the Hong Kong address and not realize that the
imported article is made in China. Therefore, the country of
origin marking must appear closer to the Hong Kong address to
satisfy the close proximity requirement of 19 CFR 134.46.
Because the phrase "TCA Toy Corporation Of America", which
appears on four different panels of the box, is a trademark, 19
CFR 134.47 is applicable to this particular phrase rather than 19
CFR 134.46. The provisions of 19 CFR 134.47 require that the
country of origin marking appear in close proximity or in some
other conspicuous location, which is less stringent than the
close proximity requirement of 19 CFR 134.46. However, given the
appearance of the trademark on four panels of the box, placing
the country of origin mark on only one panel is not a conspicuous
location. The country of origin should appear on at least two
panels of this box so that it can be easily found and read.
HOLDING:
The placement of the country of origin marking on the
opposite corner of the panel from a foreign address other than
the country of origin does not satisfy the close proximity
requirement of 19 CFR 134.46. Given the appearance of the
trademark on four panels of the box, placing the country of
origin marking on only one panel of the box is not a conspicuous
location as required by 19 CFR 134.47. Since the trademark
appears on four panels of this box, the country of origin marking
should appear on at least two panels so that it can be easily
found and read.
Sincerely,
Marvin M. Amernick
Chief, Value, Special Programs
and Admissibility Branch