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NY E87733

October 7, 1999

MAR-2 RR:NC:N1:113 E87733


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


Dear Ms. Blundo:

This is in response to your letter dated September 21, 1999, requesting a ruling on whether the proposed marking "Spain" is an acceptable country of origin marking for imported pens. One marked sample was submitted with your letter for review.

The sample is a ballpoint pen, imprinted with the name of a company and intended to be given away as advertising. It is known as the BOSTON style. The pen is marked with the country of origin on the underside 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.

The proposed marking of the imported Boston pen 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 marking is inconspicuous and in a hidden place on the pen. 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. If this is not agreeable, we suggest you contact the local Customs port for advice on other proper country-of-origin marking.

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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