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HQ 734929

May 6, 1993

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.


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.


What is the proper tariff classification?

What are the country of origin marking requirements?


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.


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.


John Durant, Director

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