MAR-2-05 CO:R:C:S 735413 KR
Mr. Robert Holler, District Director
U.S. Customs Service
9400 Viscount Blvd. Suite 104
El Paso, TX 79925
RE: Internal Advice No. 80/93; Country of origin marking of
smoke detectors with the company trade name "Maple Chase
Company of Canada"; 19 CFR 134.47.
Dear Sir:
This is in response to your memorandum of September 20,
1993, forwarding a request for internal advice from Rudolf Miles
& Sons on behalf of Seatt Corp. concerning the country of origin
marking of imported smoke detectors which are products of Mexico
but have printed on the retail cartons the company trade name
"Maple Chase Company of Canada". Various corporate papers were
submitted for our review. We regret the delay in responding.
FACTS:
Seatt Corp. imports smoke detectors which are assembled in
Mexico. For purposes of this ruling, we are assuming that the
smoke detectors are products of Mexico. The back panel of the
retail container has a label attached which provides information
regarding the country of origin, the mounting type, whether or
not batteries are included and the Underwriters Laboratories
approval. The front panel of the container is printed with the
company name "Maple Chase Company of Canada". The company has
submitted various company papers indicating their company name.
One page filed as a "Registration Under the Business Names
Registration Act" filed on May 21, 1991, with the Department of
Consumer and Corporate Affairs in Winnipeg, Manitoba, Canada has
the business name listed as "Maple Chase Company of Canada".
Another filing submitted was a "Declaration For Partnership And
Business Name" for the company "Maple Chase Company of Canada"
filed with the Ministry of Finance and Corporate Relations,
Registrar of Companies of the Province of British Columbia dated
June 12, 1991, file number 119992-91. On several other
documents, however, (e.g. Alberta Corporate Registry, Manitoba
Certificate of Registration, British Columbia Registrar) the
company is identified simply as "Maple Chase Company". No
application for registration of the trademark or trade name,
"Maple Chase Company of Canada", has been filed with the U.S.
Patent and Trademark Office.
ISSUE:
Do the requirements of 19 CFR 134.46 or 19 CFR 134.47
apply to the smoke detector containers?
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.
Part 134, Customs Regulations (19 CFR Part 134), implements
the country of origin marking requirements and exceptions of 19
U.S.C. 1304. Section 134.41(b), Customs Regulations (19 CFR
134.41(b), mandates that the ultimate purchaser in the U.S. must
be able to find the marking easily and read it without strain.
In addition, 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, appears 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 (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.
Under similar circumstances, however, 134.47, Customs
Regulations (19 CFR 134.47), requires a slightly less
restrictive marking. Under 134.47, 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 name "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. Under either 134.46 or 134.47, the name of
the country of origin must be preceded by "Made in", "Product
of", or words of similar meaning. See HQ 734175 (February 24,
1992); HQ 734277 (December 24, 1991); HQ 734644 (July 1, 1992);
HQ 734568 (December 16, 1992); HQ 735321 (January 19, 1995).
The smoke detectors in the instant case are printed with the
company name, Maple Chase Company of Canada, on the front panel.
The country of origin appears on the back panel. Maple Chase
Company has submitted filings with the Canadian authorities
establishing "Maple Chase Company of Canada" as a trade name.
The language of 19 CFR 134.47 pertains to a trademark or trade
name with a location in the United States. In this case the
trade name has the location "Canada", not a U.S. location.
Customs has held, however, that "[t]he rationale for granting a
special exemption for trademarks and trade names containing the
name of a domestic locality [under 134.47] applies at least as
strongly to trademarks bearing the name of a foreign locality".
HQ 731524 (December 18, 1989) (quoting HQ 710682 (June 26,
1979)). However, in these cases, Customs' decision was based in
part upon the fact that the foreign location mentioned in the
trademark was either registered or under application for
registration with the U.S. Patent and Trademark Office.
Accordingly, it is our opinion that while the intent of 134.47
was to include foreign locales mentioned as part of a trademark
designations as well as domestic locales, a party seeking this
more lenient standard must still demonstrate registration or
application for registration with the U.S. Patent and Trademark
Office. Therefore, use of their name, "Maple Chase Company of
Canada", would trigger the requirements of 19 CFR 134.46 rather
than the more lenient requirements of 19 CFR 134.47. The
country of origin marking, preceded by the words "Made in" or
"Product of" or other similar words, must appear in close
proximity and in comparable size print in each location where
"Maple Chase Company of Canada" appears.
HOLDING:
We find that the appropriate standard applicable to Maple
Chase Company of Canada is 19 CFR 134.46 and, therefore, the
country of origin marking must appear in close proximity and in
comparable size print in each location where "Maple Chase Company
of Canada" appears.
This decision should be mailed by your office to the
internal advice requester no later than 60 days from the date of
this letter. On that date the Office of Regulations and Rulings
will take steps to make the decision available to Customs
personnel via the Customs Rulings Module in ACS and the public
via the Diskette Subscription Service, Lexis, Freedom of
Information Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division