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NY H86678

February 11, 2002

MAR-2 RR:NC:3:341 H86678


Mr. Larry Ordet
Sandler, Travis & Rosenberg, P.A.
5200 Blue Lagoon Drive
Miami, Fl. 33126-2022


Dear Mr. Ordet:

This is in response to your letter dated January 7, 2002 requesting a ruling on whether certain proposed marking is acceptable country of origin marking if the lettering "USA" appears within the design of a registered trademark but is not part of the actual trademark registration. The United States Patent and Trademark Office registration number is 2,226,566, owned by Eastpak Corporation. The actual registration does not include the “USA” lettering therefore the proposed mark is not the same as the actual trademark and is not a registered trademark. The request is on behalf of VF Corporation. It is assumed that VF Corporation is authorized to import and market backpacks bearing the EASTPAK trademark or a mark which may tend to confuse. A marked sample was submitted with your letter for review.

The submitted sample is identified as style number 000620-E-CS. It is a standard teardrop backpack manufactured of man-made textile materials. The top is closed by means of a nylon coil zipper and there is a zippered exterior storage pocket. The front panel is ornamented with a fabric patch which is embroidered with the altered mark. The “USA” lettering is approximately 9 points. (A point is a unit of type measurement equal to 0.01384 inch or nearly 1/72 in., and all type sizes are multiples of this unit). In addition there are two exterior hangtags which bear the altered mark. The “USA” mark on the hangtags is approximately 4.5 points each. The backpack has a sewn in white fabric label placed in the interior top portion of the rear panel at a point approximately equal to the apex of the bag and sewn under the top 3” gusset . The label is printed with the registered trademark design altered to include the words “ Made in USA” under the word “EASTPAK”. You have indicated that the imported bags will be the product of China, Thailand or Vietnam.

You request a decision that the sewn in label, positioned at the interior rear at apex of the bag and under the gusset , will satisfy the country of origin marking requirements of section 304, Tariff Act of 1930, as amended (19 U.S.C. §1304) and Section 134.46, Customs Regulations (19 CFR 134.46).

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 imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the article 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 goods 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. Inc., 27 CCPA 297, 302, C.A.D. 104 (1940).

The white sewn in label is not located in as a conspicuous location as the nature of the article will permit. Merchandise of this kind is usually sold at retail stuffed with packing materials. The current location of the label, as well as any retail packing, would serve to obscure the label and cause it to be less conspicuous. It is recommended the label be positioned along the top interior of the front and sewn under the zipper tape at the point that the zipper pull meets the end when open. The country of origin should be in contrasting print not less than 9 points.

Section 134.46, Customs Regulations (19 CFR 134.46), deals with cases in which the words "United States," or "American," the letters "U.S.A.," any variation of such words or letters, or the name of any city or locality in the United States, or the name of any foreign country or locality other than the country or locality in which the article was manufactured or produced, appears on an imported article or its container, and those words, letters or names may mislead or deceive the ultimate purchaser as to the actual country of origin. In such a case, 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.

The manufacturer, Eastpak Corporation, has had a history of manufacturing its product in the United States and the public has come to accept the product as an American product. Although the inclusion of the “USA” lettering is primarily for marketing, the use of the lettering “USA” within the registered trademark “EASTPAK” would likely cause confusion and may mislead the consumer that the backpack is an American product .

In order to satisfy the close proximity requirement, the country of origin marking must generally appear on the same side(s) or surface(s) in which the name or locality other than the actual country of origin appears. The submitted samples bear tags that are not legally marked according to the requirements of section 134.46, Customs Regulations. It is recommended that, wherever a tag or label is marked with the lettering “USA”, it is marked with the country of origin on the same side and in equal size print as the “USA” lettering.

The proposed marking of imported backpacks , as described above, satisfies 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 backpacks.

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 Kevin Gorman at 646-733-3041.


Robert B. Swierupski

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