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HQ 561958

January 23, 2001

MAR-05 RR:CR:SM 561958 BLS


Barbara J. Klausman
Assistant Vice President
James J. Boyle & Co.
160 Sansome Street, #900
San Francisco, CA 94104

RE: Country of origin marking of “Bandlight” pens

Dear Ms. Klausman:

This is in reference to your letter dated November 13, 2000, on behalf of KTS Inc. (“KTS”), requesting a ruling concerning the country of marking of certain “Bandlight” ballpoint pens. Samples were submitted with the request.


The subject pens have a black or primarily white plastic exterior and include a battery-powered light affixed immediately beneath the ballpoint tip so that the article can also be used as a small flashlight. The pens include a clear plastic cap, which covers the ballpoint tip, and area, which is illuminated when the light is in use.

On the lower end of the circular cap in raised lettering and in 7 point type size (.09688 inch) is the word “KOREA.” This marking is also in clear, non-contrasting lettering.

Currently, KTS is marking the country of origin on the caps in contrasting color. However, KTS requests that Customs consider whether a clear marking as reflected on the samples may be used to indicate the country of origin. KTS states that the cap itself needs to be clear so that the pen can be used as a flashlight.


Whether the marking reflected on the sample bandlight pens complies with the requirements of Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304).


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 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. Congressional intent in enacting 19 U.S.C. 1304 was "that the ultimate purchaser should be able to know by an inspection of the marking on the imported article the country of which the goods is the product. The evident purpose is to mark the goods so that at the time of purchase the ultimate purchaser may, by knowing where the goods were produced, be able to buy or refuse to buy them, if such marking should influence his will." United States v. Friedlaender & Co., 27 CCPA 297 at 302; C.A.D. 104 (1940).

Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. 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.

In Headquarters Ruling Letter (HRL) 733940 dated October 24, 1991, involving the country of origin marking of pens, we indicated that there are certain factors that need to be considered in determining if the country of origin marking on an article is conspicuous within the meaning of 19 U.S.C. 1304 and 19 CFR §134.41. 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 where he/she could easily notice it from a causal 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 determining whether a marking meets the conspicuous requirement of 19 U.S.C 1304 and 19 CFR §134.41. 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 3
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.

In applying these factors to the sample pens, we first find that the size of the marking, of approximately 7 point type, is large enough to be read without strain. The country of origin marking, although not in a contrasting color, is nevertheless clear and distinct and in letters that can be read without great difficulty. Therefore, the marking satisfies the standards for legibility. In addition, The pen cap is a location where the ultimate purchaser might expect to find the country of origin marking or would readily notice it from a casual inspection of the article. Therefore, we find that the country of origin marking on the sample pens satisfy the requirements of 19 U.S.C. 1304 and 19 CFR §134.41.


The country of origin marking on the sample bandlight pens satisfies the requirements of 19 U.S.C. 1304 and 19 CFR §134.41.

A copy of this ruling letter should be attached to the entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.


John Durant, Director

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