Mar-2-05 CO:R:C:V 734277 AT

Bernard D. Liberati
Morris, Friedman & Company
320 Walnut Street
Philadelphia, Pennsylvania 19106-3883

RE: Country of origin marking of tin containers imported from Hong Kong; adhesive labels; conspicuous; trade name marking; close proximity; U.S. locality; HQ 722064

Dear Mr. Liberati:

This is in response to your letter dated July 23, 1991, on behalf of Keller-Charles of Philadelphia, requesting a ruling on the country of origin marking of tin containers imported from Hong Kong. A sample tin container was also submitted with your letter.

FACTS:

You state that Keller-Charles of Philadelphia intends to import empty tin containers from Hong Kong. The tin container measures approximately 2 1/2" x 3 3/8" x 1 5/8" and has a bank building design painted all around the surface area except the bottom. An adhesive plastic label is securely affixed to the bottom middle of the container. On the label the words "Keller- Charles of Philadelphia" are printed in black lettering approximately 5 point (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) in size. Also, the words "Made in Hong Kong" appear directly below, in black lettering approximately 4 point in size. No other marking appears on the container. You also advised us in a telephone conversation on December 9, 1991, that the marking "Keller-Charles of Philadelphia" is the trade name for this particular company. In support, documentary evidence in the form of a telecopy (fax) dated December 9,1991, was submitted by Keller-Charles of Philadelphia stating their official registered trade name is "Keller-Charles of Philadelphia". You claim that although the "Made in Hong Kong" marking is smaller than the word "Philadelphia", it is still in comparable size, conspicuous and permanent, and therefore is an acceptable country of origin marking.

ISSUE:

Whether the country of origin marking described above satisfies the requirements of 19 U.S.C.. 1304 and 19 CFR Part 134?

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."

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."

The marking issue raised in this case involves the application of two related provisions of the marking regulations, 19 CFR 134.46 and 19 CFR 134.47. The application of the special marking requirements set forth in these provisions is triggered by the presence of the word "Philadelphia" printed on the adhesive label.

Both provisions serve the same purpose of preventing ultimate purchasers from being misled or deceived when the name of a country or place other than the country of origin appears on an imported article or its container. The critical difference between the two provisions is that section 134.46 requires that the name of the actual country of origin appear "in close proximity" to the U.S. reference and in lettering of at least comparable size. By contrast, 134.47 requires less, providing that 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 name of the actual country of origin must appear in close proximity to the place "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 to meet the general standard of conspicuousness. In either case, the name of the country of origin must be preceded by "Made in," "Product of," or words of similar meaning.

As applied here, it is our opinion that the less stringent requirements of 19 CFR 134.47 apply. The word "Philadelphia" which appears on the adhesive label is part of the trade name "Keller-Charles of Philadelphia". In HQ 722064 (August 3, 1983), Customs ruled that 19 CFR 134.47 would apply only if the word "Paris" was part of the registered trade name. Otherwise, 19 CFR 134.46 would be the applicable provision. Here, because the word "Philadelphia" is part of the trade name "Keller-Charles of Philadelphia", section 134.47 marking requirements must be satisfied. Accordingly, the actual country of origin (Hong Kong) only needs to satisfy the general standards of conspicuousness. The country of origin must also be preceded by the words "Made in", "Product of", or words of similar meaning.

In this case, the words "Made in Hong Kong" appear directly below the "Keller-Charles of Philadelphia" marking. Also, examination of the tin container indicates that the adhesive label is located in a conspicuous location is legible and is permanent in that the label is securely affixed. Based on these considerations we find that the adhesive label satisfies the marking requirements of 19 CFR 134.47.

HOLDING:

The proposed country of origin marking of imported tin containers, as described above, satisfies the marking requirements of 19 U.S.C. 1304 and section 19 CFR 134.47

Sincerely,

John Durant, Director
Commercial Rulings Division