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August 25, 1999

MAR-2 RR:NC:N1:113 E86009


Ms. Francis T. Blundo
Inoxcrom, Inc.
282 Grand Avenue
Englewood, NJ 07831


Dear Ms. Blundo:

This is in response to your letter dated August 10, 1999, requesting a ruling on whether the proposed marking "Spain" is an acceptable country of origin marking for imported pens. Five marked samples were submitted with your letter for review.

The five samples are ballpoint pens, imprinted with the name of a company and intended to be given away as advertising. They include B-Dual, B-1 Crystal, TODAY, ROCKET and BOSTON. Other styles shown are the B-Sydney, and the B-1 ABS. In all cases, the marking “Spain” appears in raised letters about 1/16 of an inch high. The marking is “blind”, that is, in the same color as the background.

The B-models are marked on the underside of the clip. The clip is of clear plastic and the marking is visible through the clip, but backwards, like the reflection in a mirror. The TODAY, ROCKET and BOSTON are marked on the back of the barrel, between the prongs of the clip.

The marking statute, section 304, Tariff Act of 1930, as amended (19 U.S.C. 1304), provides that, unless excepted, every article of foreign origin (or its container) imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly and permanently as the nature of the article (or its 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.

As provided in section 134.41(b), Customs Regulations (19 CFR 134.41(b)), the country of origin marking is considered conspicuous if the ultimate purchaser in the U.S. is able to find the marking easily and read it without strain.

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. 19 CFR 134.1(d)(2) also indicates that if the imported article is distributed as a gift the recipient is the "ultimate purchaser." Consequently, although the pens may be given away by businesses as promotions or advertisements, under the Customs regulations the recipient of the pens, not the importer, would be considered the ultimate purchaser. Therefore, the pens must be marked permanently, legibly and conspicuously, to indicate their country of origin to their recipient. See Pabrini, Inc. v. United States, 630 F.Supp 360 (C.I.T., 1986).

In HQ 733940, of October 24, 1991, Customs Headquarters set certain factors that need to be considered in determining if the country of origin marking on an article, such as a pen, is conspicuous within the meaning of 19 CFR 134.41 and 19 U.S.C. 1304. Among the factors that should be considered are the size of the marking, the location of the marking, whether the marking stands out, and the legibility of the marking. The size of the marking should be large enough so that the ultimate purchasers can easily see the marking without strain. The location of the marking should be in a place on the pen where the ultimate purchaser could expect to find the marking or easily notice it from a casual inspection. Whether the marking stands out is dependent on where it appears in relationship to other print on the article and whether it is in contrasting letters to the background. The legibility of the marking concerns the clarity of the letters and whether the ultimate purchaser could read the letters of the marking without strain. No single factor should be considered conclusive by itself in the determination. Instead, it is the combination of these factors which determines whether the marking is acceptable. In some cases, a marking may be unacceptable even when it is in a large size because the letters are too hard to read or it is in a location where it would not be easily noticed. In other cases, even if the marking is small, the use of contrasting colors, which make the letters particularly stand out, could compensate to make the marking acceptable.

As general rule, blind marking is unacceptable. The marking of the B-Models is neither legible nor conspicuous: marking under the clip is considered to conceal the country of origin and, although it is somewhat visible through the clear clip, it is backwards. Even if the marking were on the barrel, the fact that it is blind and only 1/16th of an inch would render it questionable.

The marking of the other models is marginally acceptable. It appears in between the prongs, which hold the clip to the barrel of the pen. The pen is so designed that the clip is fitted to the barrel and cannot be moved so that the marking cannot be concealed by movement of the clip. In this instance, the ends of the prongs co-incidentally frame the marking, lending it emphasis and making it easier to notice.

We would recommend since the barrels of the pens are imprinted with advertising, that they be imprinted with the country of origin at the same time.

The proposed marking of imported B-Dual, B-1 Crystal, B-Sydney, and B-1 ABS as described above, does not satisfy the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134 and is not an acceptable country of origin marking for the imported pens.

The proposed marking of imported TODAY, ROCKET and BOSTON, as described above, is conspicuously, legibly and permanently marked in satisfaction of the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134 and is an acceptable country of origin marking for the imported pens.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 CFR Part 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist James Smyth at 212-637-7008.


Robert B. Swierupski

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