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NY G80175

August 11, 2000

MAR-2 RR:NC:N1:113 G80175


Mr. Greg J. Osnes
Geo. S. Bush & Co., Inc.
P.O. Box 8829
Portland OR 97208


Dear Mr. Osnes:

This is in response to your letter dated July 24, 2000, on behalf of GB II Corporation/Columbia River Knife & Tool, requesting a ruling on the proper method of marking a pocket knife imported in an open cardboard box. A marked sample container was submitted with your letter for review.

The merchandise is a pocketknife made in Taiwan. Each knife is imported with a country-of-origin marking on the blade that conforms to the requirements of 19 CFR 134.43(a). The knives are packaged in two types of unsealed cardboard containers. One container has an additional country-of-origin marking on the end, and the other does not. Further, you remark that it is the practice in the trade to display the knives in a glass counter case or enclosed display rack; therefore, any purchaser would be able examine the article before purchase. The box is also marked with the name of a locality in the United States, “COLUMBIA RIVER knife & tool.” The Columbia River forms the boundary between Oregon and the State of Washington. You ask which, if any, of these markings is acceptable. You stated over the telephone that the company has applied to the U.S. Patent and Trademark Office for registration of a trademark for that name. The application for the trademark is still pending.

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.

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. The purpose of the marking statute was stated by the Court of Customs and Patent Appeals in United States v. Friedlaender & Co., 27 CCPA 297, 302, C.A.D. 104 (1940) as to permit the ultimate purchaser, "by knowing where the goods were produced, [to] be able to buy or refuse to buy them, if such marking should influence his will." Section 134.1(d), defines the ultimate purchaser as generally the last person in the U.S. who will receive the article in the form in which it was imported. If an imported article is to be sold at retail in its imported form, the purchaser at retail is the ultimate purchaser. In this case, the ultimate purchaser of the knives is the consumer who purchases the product at retail.

Special marking requirements for knives and forks are set forth at 19 CFR 134.43(a), specifying that those and certain other articles are to be marked by means of die stamping, cast-in-mold lettering, etching, engraving, or by affixing metal plates to the article. However, these requirements have been construed to be subject to the general exception from individual country of origin marking provided at 19 U.S.C. 1304(a)(3)(D), which permits an article to be excepted from marking if the marking of its container will reasonably indicate its country of origin. The exception is set forth in the regulations at 19 CFR 134.32(d). See C.S.D. 80-44. Generally, in order to approve this exception Customs officials must be satisfied that the imported article will, in all foreseeable circumstances, reach the ultimate purchaser in its properly marked, unopened container.

In C.S.D. 80-44 Customs determined that the marking of retail "presentation packs" containing silver plated flatware would not qualify the flatware for the exception for marked containers. Customs found that the purchaser at retail would be likely to open the presentation pack to examine the merchandise, thereby making it conceivable that the unmarked flatware would be sold without its marked container.

In this case, you have stated that it is usual in the trade to sell the knives outside the box. Therefore, each knife is required to be marked in accordance with the special marking requirements of 19 CFR 134.43(a).

Regarding the marking of the container, in HQ 735093 of September 8, 1993, HQ ruled that, although goods had been individually marked:
since a U.S. address "Pelham Manor, New York" appears on the bottom of the back panel of the retail box an ultimate purchaser may incorrectly determine that the product was made in the U.S., rather than the actual foreign country, if no other country of origin marking appears on the box. Moreover, since a U.S. address appears on the retail box, special marking requirements are triggered which require that the box be marked with the country of origin Based on these considerations, we find that the retail box is not excepted from marking under 19 CFR 134.24(d)(3), and the box must be marked with the country of origin even though the article itself is individually marked.

Section 134.46, Customs Regulations (19 CFR 134.46), requires that in cases when the words "U.S.," or "American," the letters "U.S.A.," any variation of such words or letters, or the name of any city or locality in the U.S., or the name of any foreign country or locality other than the country or locality in which the article was manufactured or produced, appear 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 (emphasis added).

However, Section 134.47, Customs Regulations (19 CFR 134.47), applies when the name of a location in the U.S. or "U.S." or "America" appears “as part of a trademark or trade name or as part of a souvenir marking." 19 CFR 134.47 requires that:
when as part of a trademark or trade name or as part of a souvenir marking, the name of a location in the United States or “United States” or “America” appear, the article shall be legibly, conspicuously, and permanently marked to indicate the name of the country of origin of the article preceded by “Made in,” “Product of,” or other similar words, in close proximity or in some other conspicuous location.

Customs has accepted a filed application with the U.S. Patent and Trademark Office as sufficient evidence of a trademark for purposes of 19 CFR 134.47 since the regulation does not specify what evidence is needed to establish a trademark. However, if the application is denied, the requirements of 19 CFR 134.46 will need to be satisfied. See HRL 734455 dated July 1, 1992, and HRL 735180 dated May 17, 1994. Therefore, in this case, although only an application has been filed, Customs will allow the more lenient requirements of 19 CFR 134.47 to apply.

(In a telephone conversation, you requested that this office verify that such a recordation or pending recordation are still required for 19 CFR 134.47 to apply. We were not able to get a rapid reply to this question. The point is moot in this situation, since you have a pending recordation, and, in the interest of time, we are responding to this request without answering it. If you are still interested in the matter, we suggest that you request an answer directly in writing.)

Since the trade name includes the reference to a location in the United States on the container, the country of origin of the article must also appear on the container in a conspicuous location preceded by "Made in", "Product of", or other similar words. Under 19 CFR 134.47, the country of origin marking needs only meet the general standard of conspicuousness. The sample you supplied of a marked container shows the marking “Product of Taiwan” located on a white label on the side of the box, between the model number of the knife and the barcode. Thus, it is in a position of interest to the consumer, and may be considered conspicuous.

The knives must be marked in the manner described above. The retail boxes containing the imported knives are not excepted from marking under 19 CFR 134.24(d)(3) and must be individually marked with the country of origin.

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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