HQ 734073
July, 10 1991
MAR-2-05 CO:R:C:V 734073 RSD
Brenda Jacobs, Esq.
Sharretts, Paley, Carter & Blauvelt
1707 L Street, N.W.
Washington, D.C. 20036
RE: Country of origin marking of 35mm color film, registered
trademarks, containers, 19 CFR 134.47, 19 CFR 134.46
Dear Ms. Jacobs:
This is in response to your letter dated March 8, 1991,
requesting a ruling on the country of origin marking requirements
for 35mm color film made in Japan and imported by Fuji Photo Film
USA, Inc. We are also in receipt of your additional submissions
dated April 1, 1991, April 29, 1991, and June 20, 1991. Two
sample film packages were also received.
FACTS:
Fuji Photo Film USA, Inc., (Fuji) imports 35mm color film
used in photography. Each role of film is sold in a package
which indicates the type of film and number of exposures. The
packages contain various information regarding the product and
are marked "MADE IN JAPAN" in two places. The back of the
package contains the following statement "MADE IN JAPAN by FUJI
FILM CO., LTD., TOKYO." On the bottom of the package beneath the
bar code there are statements "MANUFACTURED FOR THE U.S.A." and
"MADE IN JAPAN."
On one of the sample packages of the film there is a sticker
with a logo which states "OFFICIAL FILM OF THE U.S. SWIMMING
TEAM." The logo also has a design in red, white and blue with
the words USA SWIMMING. The other sample package has a sticker
with the words "FUJI FILM OFFICIAL FILM OF THE U.S. TRACK AND
FIELD TEAM" and a design showing runners against a background of
the letters USA in white on a red background. Beneath the
runners design the words, the words "TRACK AND FIELD TEAM" are
printed.
A letter was submitted from the Athletics Congress/USA
which indicates that the Fuji is authorized to use the logos
described above. The logo of the U.S. Swim Team was registered
with United States Patent and Trademark Office. A copy of the
certificate of registration with United States Patent and
Trademark Office was submitted. An application for a registered
trademark was filed for The U.S. Field and Track Team logo and is
now pending before the United States Patent and Trademark
Office. A copy of the application for registration was also
submitted.
ISSUE:
Does the placing of the U.S. Swim Team and U.S. Track and
Field Team logos on the packages of film trigger the requirements
of 19 CFR 134.47 or 19 CFR 134.46?
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.
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, Customs Regulations
(19 CFR 134.41), the country of origin marking is considered to
be conspicuous if the ultimate purchaser in the U.S. is able to
find the marking easily and read it without strain.
In addition, section 134.46, Customs Regulations (19 CFR
134.46), requires that when the name of any city or locality in
the U.S., or the name of any foreign country or locality other
than the name of the country or locality in which the article was
manufactured or produced, appear 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.
Customs has ruled that in order to satisfy the close proximity
requirement, the country of origin marking must appear on the
same side(s) or surface(s) in which the name of the locality
other than the country of origin appears (HQ 708994, dated April
24, 1978). The purpose of 19 CFR 134.46 is to prevent the
possibility of misleading or deceiving the ultimate purchaser as
to the origin of the imported article.
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 the words "Made in," "Product of," or
other similar words, in close proximity or in some other
conspicuous location (emphasis added). In such circumstance, no
comparable size requirement exists.
One of the two logos that Fuji is planning to put on the
film packages, that of the U.S. Swim Team, is a registered
trademark and will be used by Fuji with the trademark holder's
permission. An application is now pending before the U.S. Patent
and Trademark Office for the registration of the U.S. Track and
Field Team logo, which is the other logo that Fuji is planning to
put on the packages of the film. Customs is currently reviewing
the issue of whether or not a trademark must be registered in
order to trigger the requirements of 19 CFR 134.47. Until
Customs has resolved this issue and published its position, the
requirements of 19 CFR 134.47 rather than 19 CFR 134.46 will be
applied to all trademarks with a U.S. reference, registered or
not.
Therefore, the issue presented is whether the two samples
satisfy the provisions of 19 CFR 134.47. The words "MADE IN
JAPAN," are printed on the film package in two locations. We
find that the country of origin markings can be easily found and
read. Therefore, the country of origin markings on the sample
packages satisfy the conspicuous location requirement of 19 CFR
134.47. Accordingly, the country of origin marking satisfies
the requirements of 19 CFR 134.47.
We also note that the words "MANUFACTURED FOR THE U.S.A."
below the bar code on the bottom of the package trigger the
requirements of 19 CFR 134.46. The requirements of 19 CFR 134.46
are satisfied by the country of origin marking "MADE IN JAPAN,"
which is in close proximity to and in a comparable size as the
phrase "MANUFACTURED FOR THE U.S.A."
HOLDING:
The references on the sample film packages to the U.S. and
USA which appear as part of a trademark trigger the requirements
of 19 CFR 134.47. The country of origin markings on the on the
sample packages of film satisfies the requirements of 19 CFR
134.47 and 19 U.S.C. 1304. The words "MANUFACTURED FOR THE
U.S.A." on the bottom of the package trigger the requirements of
19 CFR 134.46. The requirements of 19 CFR 134.46 are satisfied
by the country of origin marking "MADE IN JAPAN" which appears in
close proximity to and in comparable size letters.
Sincerely,
John Durant, Director
Commercial Ruling Division