HQ 0733184 - Country of Origin Marking; Lumber Imported under Plastic Covers; J-List; Confusing or Deceptive Reference to a U.S. City; 19 CFR 134.47; 19 CFR 134.36(b) - United States International Trade Commision Rulings

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HQ 733184
October 9, 1990

MAR-2-05 CO:R:C:V 733184 NL

CATEGORY: MARKING

Area Director
Western Great Lakes Area
U.S. Customs Service
Minneapolis, MN 66401

RE: Country of Origin Marking; Lumber Imported under Plastic Covers; J-List; Confusing or Deceptive Reference to a U.S. City; 19 CFR 134.47; 19 CFR 134.36(b)

Dear Sir:

This is in response to your request for Internal Advice dated December 28, 1989, which has been designated as IA 2/90 by the Chief, National Import Specialist Division, Branch 1, New York Seaport.

FACTS:

The importer of record, Weldwood of Canada, Ltd., entered a railcar load of sawed lumber at International Falls, Minnesota on December 3, 1989. The carload was covered with a plastic sheet which bore the imprint "Houston" in billboard sized lettering, followed underneath by the words "Forest Products" in smaller lettering. Houston Forest Products Co., located in Houston, British Columbia, is an affiliate of the importer, Weldwood. There was no indication of the lumber's Canadian origin.

Customs officials effected a seizure of the lumber pursuant to 19 U.S.C. 1595a(c) on the basis that the lumber was deceptively marked within the meaning of 15 U.S.C. 1125(b), which prohibits the importation into the U.S. of an article bearing a false designation of origin.

For twelve subsequent railcar loads of sawed lumber Customs officials at International Falls issued notices to the importer that the lumber was not marked with its country of origin in accordance with 19 U.S.C. 1304 and Part 134, Customs Regulations (19 CFR Part 134). After consultations with Customs Headquarters you elected to cancel the seizure and marking notices and to seek a determination from Customs Headquarters through the Internal Advice procedure.

It is the position of the importer as presented in his Petition for Relief that there is nothing false or deceptive about the marking. A shipment of lumber which indicates the name "Houston Forest Products" accurately states the name under which Weldwood of Canada conducts some of its trade, and "Houston" is in fact the name of a location in Canada from which that company derives its name. Moreover, states the importer, as an article listed at 19 CFR 134.33, also known as the "J-List", sawed lumber is excepted from the country of origin marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134. In addition, the importer represents that the plastic covering the lumber serves merely to protect the merchandise during transit, and does not reach the ultimate U.S. purchasers of the lumber. As such, the presence on the plastic cover of the name "Houston" should not trigger any country of origin marking requirements.

You contend that the prominent display of the name "Houston" on the wood's covering is confusingly similar to the name of a U.S. city, triggering the requirements of 19 CFR 134.46. You further contend that despite the exception of sawed lumber from marking pursuant to 19 CFR 134.33, the plastic covering is an outermost container which reaches the ultimate purchaser. Such a container must be marked as to the country of origin of its contents. You also seek guidance as to the applicability of 19 CFR 134.47, which provides that when the name of a location in the U.S. appears as part of a trademark or trade name on an imported article, the article's country of origin must be conspicuously displayed.

The Chief of Branch 1, National Import Specialist, New York Seaport (NIS), in commenting upon this matter, agrees with your position that the plastic cover is an outermost container which, as a matter of fact, reaches the ultimate purchaser. In addition, the NIS notes that while the lumber itself is excepted from country of origin marking pursuant to 19 CFR 134.33, and a decision of Customs, T.D. 74-36 (October 18, 1974) excepts also the containers of sawed lumber, that the importer, having chosen to mark the cover with a name which could confuse the ultimate purchaser, has triggered the requirements of 19 CFR 134.46 or 134.47.

ISSUE:

What country of origin marking obligations follow from the presence of the name "Houston" in large lettering followed underneath by the words "Forest Products" in smaller lettering on the plastic cover of the sawed lumber?

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.

This case raises an apparent conflict between 19 U.S.C. 1304(a)(3)(J), as implemented by 19 CFR 134.33, and 19 CFR 134.46 and its related provision, 134.47. The former provision (often known as the "J-List" from its statutory authority, 19 U.S.C. 1304(a)(3)(J)), consists of a list of articles compiled by the Secretary of the Treasury which prior to 1937 customarily had been excepted from marking. The listed articles are excepted from individual country of origin marking provided the outermost container which reaches the ultimate purchaser is marked. Sawed lumber is included on the "J-List". Sawed lumber is also specifically addressed in T.D. 74-36, in which further exception was afforded. That decision specified that the containers in which Canadian sawed lumber was imported, such as straps for bundles, pallets, or other wrapping including polyethylene, were to be excepted from the requirement of 19 CFR 134.33 that the outermost container of a J-listed article be marked with the article's country of origin.

On the other hand, 19 CFR 134.46 and 19 CFR 134.47 broadly provide that when on an imported article or its container there appear words indicating a location other than the article's country of origin, the actual country of origin also must appear conspicuously. The latter provision applies when the location appears as part of a trademark, trade name, or souvenir marking. The former provision applies in all other cases. In addition, 19 CFR 134.36(b) provides that an exception from marking shall not apply to any article or its container bearing any words described in 19 CFR 134.46 or 134.47 which imply that an article was made or produced in country other than the country of origin.

The principal issue for decision is whether an article, excepted from marking by inclusion on the J-List, and whose container or covering is excepted from country of origin marking pursuant to a Treasury Decision (T.D. 74-36), is nonetheless subject to marking if 19 CFR 134.46 or 19 CFR 134.47 are applicable. In view of the primary statutory purpose of 19 U.S.C. 1304 to require that imported articles "clearly indicate" their country of origin, and the purpose of 19 CFR 134.46 and 134.47 to prevent the ultimate purchaser of imported articles from being confused or misled, it is our opinion that in this case marking is required.

There was considerable discussion between the parties as to whether the plastic cover qualified as a "container" under the marking regulations, and whether the cover would reach the ultimate purchaser in the U.S. The importer has not presented facts or argument indicating who is the ultimate purchaser of the sawed lumber, nor has he represented that the ultimate purchaser would never receive the lumber with its cover bearing the name "Houston". To sustain that argument it would be necessary to indicate how the sawed lumber is used in commerce, the types of anticipated purchasers, and the methods of unlading and storage which are applicable. Even then, it would be virtually impossible for the importer to demonstrate that no ultimate purchaser would see the plastic covering prior to purchase. Thus, we concur with the finding of the Area Director and the National Import Specialist that the wrapping, whether it is considered a "container" under Subpart C of the marking regulations (19 CFR 134.21 et seq.) or otherwise, is likely to reach at least some ultimate purchasers of the lumber.

It is also our opinion that the name conveys, whether intended or not, the impression that the product is associated with the U.S. city of that name. Without an accompanying country of origin marking the ultimate purchaser could be misled by the name "Houston" as to the true origin of the lumber. Given that the sawed lumber is imported into the U.S. with the name "Houston" on its wrapping, and that the importer has not demonstrated that the marking displayed on the plastic cover never reaches the ultimate purchaser in the U.S., we find that the provisions of 19 CFR 134.46 and 19 CFR 134.47 apply. Despite the exceptions afforded to sawed lumber and its containers under the J-List and T.D. 74-36, this circumstance is encompassed by 19 CFR 134.36(b), which assures implementation of the statutory purpose by providing that exceptions are not applicable when an article's container or wrapping bears misleading markings which imply that the article originates in a country other than the country of origin.

Because the name "Houston" appears as part of the trade name of the consignor, Houston Forest Products, the applicable provision is 19 CFR 134.47. Thus, the name of the country of
origin of the sawed lumber preceded by the words "made in" or words of similar meaning must appear in a conspicuous location. Here, that location would be the plastic cover, and the marking must be suficiently large and clear to be easily found and read without strain. See, 19 CFR 134.41.

HOLDING:

Although the sawed lumber and its plastic cover are ordinarily excepted from country of origin marking, the presence of the name "Houston" tends to confuse the ultimate purchaser as to the origin of the lumber. As part of a trade name, the name "Houston" triggers the requirements of 19 CFR 134.47.

Sincerely,

John Durant
Director, Commercial Rulings

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