NY N024670 - THE COUNTRY OF ORIGIN MARKING OF FOOTWEAR - United States International Trade Commision Rulings

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NY N024670

March 24, 2008

MAR-2 OT:RR:NC:SP:247

CATEGORY: MARKING

Mr. Joseph M. Spranagen
Grunfeld, DeSiderio, Lebowitz, Silverman & Klestadt LLP 399 Park Avenue – 25th Floor
New York, NY 10022-4877

RE: THE COUNTRY OF ORIGIN MARKING OF FOOTWEAR

Dear Mr. Spranagen:

In your letter dated March 11, 2008 you requested a ruling on behalf of Fila, USA, Inc., regarding the acceptability of certain locality markings on imported footwear manufactured in China.

You have submitted samples of two footwear styles named TRENTINO and SOFISTICATO. Both styles are described as men’s “high-top” athletic-type shoes. Both samples have a size label glued to the inside of the tongue indicating US, EUR and UK sizing and “Made in China” in smaller type face. This method of labeling satisfies the requirements of The marking statute, section 304, Tariff Act of 1930, as amended (19 U.S.C. 1304), which 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. However, both shoes also feature locality markings other than the country of origin.

Style TRENTINO features a patch at the top of the outer surface of the tongue (above the lace) that includes the words “Fila Italia” and “Since 1911.” You state that Fila has filed a trademark application with the U.S. Patent and Trademark Office for “Fila Italia.”

Style SOFISTICATO features the words “Fila,” “Biella Italia” and “Since 1911” molded into the outer sole. The color scheme of the shoe, in the opinion of this office, closely approximates the orange, white and green colors of the flag of Italy. The reference to Biella, Italia is not a registered trademark and you have not suggested that Fila has filed an application to record it.

Section 134.46 of the Customs Regulations (19 CFR 134.46) provides that in any case where the words “U.S.,” “American,” or 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 any imported article or its container, there shall appear, legibly and permanently, in close proximity to such words, letters or name, and at least in a comparable size, the name of the country of origin preceded by “Made in,” “Product of,” or other words of similar meaning.

Section 134.47 C.R. provides 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.

The purpose of both provisions (134.46 and 134.47) is the same, namely to prevent the ultimate purchaser from being misled or deceived when the name of a country or place other than the country of origin appears on an imported article or its container.

As you note, HQ 731524 dated December 18,1989, states: "The rationale for granting a special exemption for trademarks and trade names containing the name of a domestic locality applies at least as strongly to trademarks bearing the name of a foreign locality. Accordingly, it is our opinion that the intent of 134.47 was to include foreign trademark designations as well as domestic locales."

The submitted sample of style TRENTINO satisfies the requirements of the subject marking regulations. The “Fila Italia” patch at the top of the tongue, a recorded trademark, does not mislead or deceive the ultimate purchaser as to the country of origin of the shoe.

The submitted sample of style SOFISTICATO having “Biella Italy” molded into the sole does not satisfy the requirements of the subject marking regulations. You suggest that if this office finds that the marking of style SOFISTICATO is unacceptable, a hang-tag attached to an eyelet of the shoe stating “Made in China” could be attached in a manner sufficiently permanent to be removed only by the ultimate purchaser. While not having seen this alternative method of marking, we are inclined to agree that this additional step should eliminate any possible deception or misconception as to the origin of the shoes.

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 Richard Foley at 646-733-3042.

Sincerely,

Robert B. Swierupski
Director,

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