MAR-2-05 CO:R:C:V 733691 GRV

Barry Kaplan, Esq.
Serko & Simon
One World Trade Center - Suite 3371
New York, N.Y. 10048

RE: Location of country of origin marking on shoes bearing a trademark incorporating a geographic name (U.S. locality) other than that of the country of origin. 19 CFR 134.41; conspicuousness; trademark; 19 CFR 134.47; C.S.D. 86-5; 730597; C.S.D. 88-38; C.S.D. 89-91; 730070

Dear Mr. Kaplan:

This is in response to your letter of July 26, 1990, on behalf of Shonac Corp., requesting a ruling regarding the country of origin marking of shoes bearing a registered trademark which incorporates a geographic name (U.S. locality) other than that of the country of origin. Three shoes samples were submitted for examination.

FACTS:

Shoes manufactured abroad will be marked to indicate their country of origin either on the bottom of the sole or on the inside at the heel and one or more versions of the trademark "Sandler of Boston" will be imprinted on the inside of the shoe on the sock liner at the heel. ("Sandler of Boston," "SANDLER," and "S.O.B." are trademarks duly registered with the U.S. Trademark Office, as evidenced by the copies of the trademark certificates of a mark upon the principal register submitted with your ruling request). The shoe samples submitted are marked with their country of origin, preceded by "MADE IN," by means of either branding, which leaves a contrasting impression in the article stamped, injection molding, which leaves raised letters in the article in the same color as the article, or ink-stamping, which leaves a contrasting color mark. On two of the samples, the country of origin markings are printed in approximately 9- point print (1/8 inch letters) (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) on the sole, and the trademarks are printed in 18-point print ( inch letters) on the inside of the shoe on the sock liner at the heel. The third sample is marked with its country of origin by means of an ink stamp inside the heel (not on the sock liner) in approximately 5-point print (<1/12 inch letters). (For an understanding of the print size/type terms referenced here, see the entry under "Type (printing)" in volume 18 of McGraw-Hill Encyclopedia of Science & Technology (6th ed., 1987), or the entry under "Printing" (in pre-1985) or "Printing, Topography and Photoengraving" (printings since 1985) in volume 14 of The New Encyclopaedia Britannica (15th ed., 1975)).

You specifically request that we confirm your belief that prominent stamping, branding, or labeling the country of origin on shoes bearing a trademark incorporating a geographic name other than that of the country of origin will satisfy the requirements of 19 U.S.C. 1304 and 19 CFR Part 134 as acceptable marking, and request that we rule regarding the various placements of the country of origin marking on the shoes.

ISSUE:

Whether the locations of the country of origin marking on shoes--on either the bottom of the sole or the inside at the heel--in relation to the registered trademark used, meet the conspicuousness requirements of 19 U.S.C. 1304 and 19 CFR 134.47.

LAW AND ANALYSIS:

The marking statute, section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304), provides that, unless excepted, every article of foreign origin (or its container) imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly and permanently as the nature of the article (or its container) will permit in such a manner as to indicate to the ultimate purchaser the English name of the country of origin of the article. Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304.

The primary purpose of the country of origin marking statute 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 CCPA 297, 302, C.A.D. 104 (1940). The clear language of section 1304 requires 'conspicuous' marking, and to this end section 134.41(b), Customs Regulations (19 CFR 134.41(b)), further provides, in part, that the ultimate purchaser in the U.S. must be able to find the marking easily and read it without strain. Regarding the concept of conspicuousness, where locations other than the country of origin of the merchandise are identi- fied on an imported article or its container, section 134.47, Customs Regulations (19 CFR 134.47), further provides that:

[w]hen as part of a trademark or trade name or as part of a souvenir marking, the name of a location in the United States or "United States" or "America" appear, 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.

Regarding the location of where footwear should be marked to be considered conspicuous, we have previously stated that a country of origin marking at the base of the tongue label or on the inside of the heel is normally considered a conspicuous marking, unless foreign symbols (other than that of the country of origin) prominently appear on the article and/or its container. C.S.D. 86-5, 20 Cust.Bull. 585, 586 (1986), and Headquarters Ruling Letter (HRL) 730597 dated August 13, 1987 (athletic footwear marked with a sewn in label located 2/3 of the way down the tongue found not to be conspicuously marked). However, within the context of 19 CFR 134.47, we have stated that so long as the country of origin marking was conspicuous enough so that the ultimate purchaser could locate it easily upon a casual inspection, i.e., the marking information appears in its usual location, and would not be mislead by the other location references, the marking would be considered conspicuous for purposes of the marking laws. C.S.D. 88-38, 22 Cust.Bull. 420, 422 (1988), and C.S.D. 89-91, 23 Cust.Bull. 764, 766 (1989).

Regarding conspicuous country of origin marking for purposes of 19 CFR 134.47 where trademarks are concerned, in HRL 730070 dated March 1987, we found that, where the registered trademark-- which used the initials "USA"--was displayed in several locations on footwear and the country of origin was similarly marked in three places (the sock lining, the tongue and inside the collar label), the shoe was conspicuously marked as required by section 134.47, as such marking was readily visible even considering the presence of the prominently displayed "USA" emblems.

Given the above and after examining the shoe samples submitted, we find in this case that the various country of origin markings are sufficiently conspicuous for purposes of 19 U.S.C. 1304 and 19 CFR 134.47, in that the markings are readily visible; the information appearing in the usual location for footwear.

Based on an examination of the shoes submitted, we find that the provisions of 19 CFR 134.41(b) and 19 CFR 134.47 are satisfied by the present methods and locations of marking the country of origins on the shoes. This determination is based on the following: first, the markings in contrasting colors or raised letters are easy to find and the print point size is large enough to be read without strain; second, the shoe samples are marked with their country of origin preceded by "MADE IN," as required by this section of the regulations; and, third, marking by means of either branding, injection molding, or ink-stamping, serves to mark the country of origin on the footwear articles as indelibly and permanently as the nature of the article permits.

HOLDING:

Based on the information and samples submitted, the locations of the country of origin marking on the shoes--on either the bottom of the sole or the inside at the heel--in relation to the registered trademark used, are conspicuous enough for the ultimate purchaser to easily find and read them. Accordingly, the proposed country of origin markings satisfy the requirements of 19 U.S.C. 1304 and 19 CFR 134.47.

Sincerely,

John Durant, Director
Commercial Rulings Division