MAR-2-05 CO:R:C:V 734929 RC
Mr. Joseph B. Castellano
Rudolph Miles & Sons, Inc.
P.O. Box 2489
Laredo, Texas 78044-2489
RE: Trademark/Trade Name, Classification, Country of Origin
Marking of Empty Disposable Bottles; 15 U.S.C. 1125.
Dear Mr. Castellano:
This is in response to your letter dated December 15, 1992,
on behalf of Circuit Components, Inc. requesting a ruling
concerning the trademark/trade name restrictions, tariff
classification, and country of origin marking requirements for
empty disposable plastic bottles.
With regard to the trademark/trade name, your letter
indicates that the bottles will be imported bearing "a company
name, identifying data, instructions, and bottle capacity ..."
However, since you have not specified the trademark or trade
name, we cannot determine whether the articles would be
restricted under the Customs Regulations. In any event, written
consent from the domestic owner of trademark, indicating your
authority to use the mark or to import goods bearing the mark
will provide an exception to the restriction.
The following ruling pertains to specific classification and
country of origin marking issues. Other classification issues
presented in your request will be addressed under separate cover.
FACTS:
Your client proposes to export U.S.-manufactured empty
disposable plastic bottles to Mexico. The bottles, 7ml to 500ml
capacity, undergo silk-screening in Mexico. Subsequently, they
are shipped back to the U.S. and warehoused pending orders from
customers whose company names appear on the bottles. These
customers are located in the U.S. or a foreign country. The
submitted sample bottles include one blank and two silk-screened.
The silk-screened bottles are marked "ESTEE LAUDER, TORONTO,
CANADA" and "ESTEE LAUDER, N.Y., N.Y. 10022" respectively.
ISSUES:
What is the proper tariff classification?
What are the country of origin marking requirements?
LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) is governed by
the General Rules of Interpretation (GRI's) taken in order. GRI
1 provides that the classification is determined first in
accordance with the terms of the headings and any relative
section and chapter notes. If GRI 1 fails to classify the goods,
and if the heading and legal notes do not otherwise require, the
remaining GRI's are applied taken in order.
In considering the subheadings which would be applicable to
empty plastic bottles, we noted subheading 3923.30.00, HTSUSA,
which provides for "Carboys, bottles, flasks and similar
articles." We believe that that subheading specifically provides
for empty plastic bottles of the type described in your inquiry.
Accordingly, we have concluded that the empty plastic bottles, if
they do not qualify for treatment under chapter 98, HTSUSA, would
be classifiable under subheading 3923.30.0010, HTSUSA, if of a
capacity not exceeding 50ml and under subheading 3923.30.0090,
HTSUSA, if of a greater capacity. If so classified, the bottles
would be subject to a general rate of duty of 3 percent ad
valorem or, if they qualify for GSP treatment, a free rate of
duty.
Section 304 of the Tariff Act of 1930, as amended (19 U.S.C.
section 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 bottles are manufactured in the U.S. and since silk-
screening does not effect a substantial transformation, the
bottles are not of foreign origin within the meaning of 304.
See HRL 734646 (December 23, 1992). Therefore, neither the empty
bottles nor their bulk containers are required to be marked with
their country of origin. However, even though no marking is
required under 304, the bottles may not be deceptively marked or
so imported. Generally, the country referred to on disposable
containers refers to the contents.
Under 15 U.S.C. section 1124:
Except as provided in subsection (d) of section 1526 of
Title 19, no article of imported merchandise which
shall bear a name or mark calculated to induce the
public to believe that the article is manufactured in
the United States, or that it is manufactured in any
foreign country or locality other than the country or
locality in which it is in fact manufactured, shall be
admitted to entry at any customhouse of the United
States.
Under 15 U.S.C. section 1125:
(a) Any person who, on or in connection with any goods
or services, or any container for goods, uses in
commerce any word, term, name, symbol, or device, or
any combination thereof, or any false designation of
origin, false or misleading description of fact, or
false or misleading representation of fact, which--
(1) is likely to cause confusion, or to cause mistake
or to deceive as to the affiliation, connection, or
association of such person with another person, or as
to the origin, sponsorship, or approval of his or her
goods, services, or commercial activities by another
person, or
(2) in commercial advertising or promotion, misrepre-
sents the nature, characteristics, qualities, or geo-
graphic origin of his or her or another person's goods,
services, or commercial activities, shall be liable in
a civil action by any person who believes that he or
she is or is likely to be damaged by such act.
(b) Any goods marked or labeled in contravention of the
provisions of this section shall not be imported into the
United States or admitted to entry at any customhouse of the
United States. The owner, importer, or consignee of goods
refused entry at any customshouse under this section may
have any recourse by protest or appeal that is given under
the customs revenue laws or may have the remedy given by
this chapter in cases involving goods refused entry or
seized.
The two printed sample bottles contain various information
about the product with which they will be filled; including the
company name, product name and description, directions,
ingredients, etc. It is clear from the overall context that the
markings "ESTEE LAUDER, TORONTO CANADA" and "ESTEE LAUDER N.Y.,
N.Y. 10022" do not refer to the origin of the bottles themselves
and that the bottles should not be denied entry on this basis.
If the bottles with the Canada marking were imported filled with
Canadian product, the product would be admissible. Similarly, if
the bottles with the N.Y. marking were filled with domestic
product, the product would be admissible.
The problem stems from the fact that the bottles are
imported empty and once entered, Customs has no control over how
the bottles will be used. Although it appears clear that the
bottles will be filled with the product that is described, we
have no way of knowing where the product will be filled and
whether the origin of the product will conform to the origin
marking on the empty bottles. Absent sufficient evidence
demonstrating that the bottles will be filled only with product
from the named country/city, we consider such markings to be
false designations of origin under 15 U.S.C. 1125; as such, the
bottles may not be imported. To avoid this problem, we suggest
eliminating the origin markings on the empty bottles.
In HRL 734832 (February 24, 1993), certain Mexican-
manufactured lamps imported into the U.S. were destined for
exportation to Canada and the importer requested relief from the
U.S. marking requirements. There, the importer claimed that the
packaging information printed in both French and English was
demonstrative that the lamps were merely awaiting their
subsequent transportation to Canada. However, this alone did not
assure Customs the lamps were in all circumstances destined for
Canada. Customs concluded the applicable statute and regulations
precluded the proposed exception, adhering to the position that
articles entered for consumption are required to be marked in
accordance with 19 USC 1304 and Part 134, Customs Regulations.
Furthermore, any articles marked with the words "USA", "Made
in USA", or in reference to a U.S. locale must comply with the
requirements of the Federal Trade Commission. You should direct
any questions on this aspect directly to the Federal Trade
Commission.
HOLDING:
The disposable plastic bottles are subject to a general rate
of duty of 3 percent ad valorem or, if they qualify for GSP
treatment, a free rate of duty. Being manufactured in the U.S.,
the disposable plastic bottles are not articles of foreign origin
and need not be marked with their country of origin. However,
under 15 U.S.C. 1125, the bottles may not enter the U.S. with the
origin markings described above absent sufficient evidence that
the bottles will be filled only with product from the named
country/city.
Sincerely,
John Durant, Director