MAR-2-05 CO:R:C:V 734231 RSD
Mr. Hagemu Matsuike
Director and Merchandise Distribution Manager
Pentel Of America, LTD.
2805 Columbia Street
Torrance, California 90509
RE: Country of origin marking for a mechanical lead pencil,
conspicuous, legible; 19 CFR 134.41; HQ 733940
Dear Mr. Matsuike:
This is in response to your request for a binding ruling on
the sufficiency of the country of origin marking for an imported
mechanical lead pencil. We have received a sample of the lead
pencil for our consideration.
FACTS:
The sample mechanical lead pencil is known as pencil A129
and is made in Japan. The pencil has a plastic body with a
reflective silver metal clip. The lead is retracted by twisting
the top of the pencil. The country of origin marking, "JAPAN",
is on the top circular part of the metal clip in etched or
engraved capital letters of about 1/16 of an inch or
approximately 4.5 point type (a point is a unit of type
measurement equal to .01284 inches or nearly 1/72 in. and all
type sizes are multiples of this unit). The marking is about the
same size as the other writing on the clip including the model
number, "A129" and the name "Pentel". Although the country of
origin marking is in non-contrasting etched or engraved letters
against the silver reflective colored metal clip, the letters are
nevertheless clear and distinct. You indicate in your letter
that pencil model numbers A125 and A127 are the same pencils as
the sample pencil A129 except that the lead sizes are different.
ISSUE:
Is the country marking on the sample mechanical lead pencil
sufficiently legible and conspicuous to satisfy the requirements
of the country of origin marking law?
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 (1940). 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. As provided in section 134.41(b), Customs
Regulations (19 CFR 134.41(b)), 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 HQ 733940, October 24, 1991, involving the country of
marking of pens, we indicated that there are certain factors that
need to be considered in determining if the country of origin
marking on an article is conspicuous within the meaning of 19 CFR
134.41 and 19 U.S.C. 1304. Among the factors that should be
considered is the size of the marking, the location of the
marking, whether the marking stands out, and the legibility of
the marking. The size of the marking should be large enough so
that the ultimate purchasers can easily see the marking without
strain. The location of the marking should be in a place on the
pen where the ultimate purchaser could expect to find the marking
or where he/she could easily notice it from a causal inspection.
Whether the marking stands out is dependent on where it appears
in relationship to other print on the article and whether it is
in contrasting letters to the background. The legibility of the
marking concerns the clarity of the letters and whether the
ultimate purchaser could read the letters of the marking without
strain. No single factor should be considered conclusive by
itself in determining whether a marking meets the conspicuous
requirement of 19 CFR 134.41 and 19 U.S.C 1304. Instead, it is
the combination of these factors which determines whether the
marking is acceptable. In some cases, a marking may be
unacceptable even when it is in a large size because the letters
are too hard to read or it is in a location where it would not be
easily noticed. In other cases, even if the marking is small,
the use of contrasting colors, which make the letters
particularly stand out, could compensate to make the marking
acceptable.
In applying these factors to the sample pencil, we first
find that the size of the marking, of approximately 1/16 of an
inch or 4.5 point type, is large enough to be read without
strain. The country of origin marking, although not in a
contrasting color, is nevertheless clear and distinct and in
letters that can be read without great difficulty. Therefore,
the marking satisfies the standards for legibility. In addition,
all other writing on the pencil is in the same style engraved
print on the metal clip as the country of origin marking. The
clip of the pencil is a location where the ultimate purchaser
would expect to find the country of origin marking or would
readily notice it from a causal inspection of the article. The
reflective background against which the country of origin marking
appears, is more than compensated by the size, location, and the
clearness of the letters of the marking. Therefore, the country
of origin marking on the sample mechanical pencil satisfies the
requirements of 19 CFR 134.41 and 19 U.S.C. 1304. However, we
cannot rule on the adequacy of the country of origin marking of
any other pencil without seeing a sample.
HOLDING:
The country of origin marking on the sample mechanical lead
pencil A129 satisfies the requirements of 19 CFR 134.41 and 19
U.S.C. 1304.
Sincerely,
John Durant, Director
Commercial Rulings Division