NY N023478 - THE COUNTRY OF ORIGIN MARKING OF WINDOW TREATMENTS - United States International Trade Commision Rulings

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NY N023478

March 6, 2008

MAR-2 OT:RR:NC:N3:349

CATEGORY: MARKING

John B. Pellegrini
McGuireWoods LLP
1345 Avenue of the Americas, 7th Floor
New York, NY 10105-0106

RE: THE COUNTRY OF ORIGIN MARKING OF WINDOW TREATMENTS

Dear Mr. Pellegrini:

This is in response to your letter dated February 13, 2008 on behalf of CHF Industries, Inc., requesting a ruling on whether the proposed marking is an acceptable country of origin marking for imported window treatments if another marking appears on the article containing a reference to a country or locality other than the actual country or origin. A marked sample of the packaging was submitted with your letter for review.

The sample at issue consists of a clear vinyl package that will contain window treatments. The package has front and back inserts. The front insert measures 2.1 x 4 inches. It includes the trademark “American Living” and a logo made up of an eagle and the United States flag. The back insert measures 7 x 9.5 inches. It includes the trademark, logo, “Made in China” in two locations (one location in English, French and Spanish), fiber content in English and French, a description of the type of window treatment, care instructions in English, French and Spanish, size of window treatment and the name and address of the U.S. company. You have submitted a printout of a pending trademark registration application with the U.S. Patent and Trademark Office.

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.

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.

In order to satisfy the close proximity requirement, the country of origin marking must generally appear on the same side or surface in which the name or locality other than the actual country of origin appears.

Section 134.47, Customs Regulations (19 CFR 134.47), provides that when the name of a place other than the country of origin appears as part of a trademark or trade name or as part of a souvenir marking, the name of the actual country of origin must appear in close proximity to the place name “or in some other conspicuous location.” Whether the country of origin appears “in close proximity” or in some other conspicuous place, the name of the country of origin must be preceded by “Made in,” “Product of,” or words of similar meaning. In other words, if the question concerns a trademark, trade name or souvenir marking, the country of origin marking need only meet the general standard of conspicuousness.

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.

The instant window treatment package, contains a back insert that refers to localities other than the country of origin. One reference, “American Living Home” and “New York, New York,” is on the same side of the insert, is in a smaller type size and is placed just under the multiple language country of origin marking. That reference satisfies the requirements of Section 134.46 CR as it is in close proximity to the country of origin marking.

The other references, “American Living” and the eagle/flag design appear as part of a trademark. You have provided a pending trademark registration application with the U.S. Patent and Trademark Office for the submitted version of the “American Living” and eagle/flag design. Customs has previously held that a filed trademark registration application is sufficient evidence of a trademark for purposes of determining whether the requirements of 19 CFR 134.47 (rather than 134.46) apply. See Headquarters Ruling Letter (HQ) 734455, dated July 1, 1992. The trademark label is not in close proximity to the origin marking however; the requirement for trademarks allows the origin marking to be in another conspicuous location. The country of origin is located in the center of the back insert located near a picture of the window treatment, its description and size, fiber content and care instructions. It is in a location where a consumer would look for such information. The marking satisfies the requirements of Section 134.47 CR. . We note that in discussing the use of a trademark application to invoke 19 CFR 134.47, HQ 734455 stated “However, if for some reason the application is denied, then the requirements of 19 CFR 134.46 will have to be complied with.”

The proposed marking of the submitted item, 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 window treatment.

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 John Hansen at 646-733-3043.

Sincerely,

Robert B. Swierupski
Director,

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