Decision on application for further review of protest no. 3801-6-001019

HQ 730951 April 13, 1989 MAR-2-05 CO:R:C:V jd CATEGORY: Marking District Director of Customs Patrick V. McNamara Building 477 Michigan Avenue Detroit, Michigan 48226-2568 RE: Decision on application for further review of protest no. 3801-6-001019 Dear Sir: This protest was filed against your decision assessing 10% marking duties on certain entries of printed matter. FACTS: The printed matter involved is titled, "Al Cross' Insider's Report." It is a brochure advertising a variety of food and food-related items for sale. We received a photocopied sample of loose pages. However, the "Report" was bound on the left margin in book fashion at importation. A marking violation was found citing noncompliance with { 134.46, Customs Regulations (19 CFR 134.46), because country of origin marking did not appear in close proximity to the words, "A GREAT AMERICAN TRADITION SINCE NOV. 1985", such words appearing near the top of the front page. The marking, "PRINTED IN CANADA" appeared at the bottom right corner of the back page. ISSUE: Does the above described use of the word "AMERICAN" trigger the requirements of { 134.46, Customs Regulations? LAW AND ANALYSIS: Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304), requires that unless excepted, every article of foreign origin (or its container) imported into the United States shall be marked in a conspicuous place as legibly, indelibly and permanently as the nature of the article (or container) will permit, in such a manner as to indicate to an 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), requires that in any case in which 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 -2- 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 comparable size, the name of the country of origin preceded by "Made in", "Product of" or other words of similar meaning. Customs ruling 729817 (November 13, 1986), concerned the application of { 134.46 to printed advertising matter. In that case multi-page advertisements for Eckerd stores had on the front page of the advertisement a stylized version of the store name and directly beneath that name the words, "AMERICA'S FAMILY DRUG STORE." In that instance we held: Under the above described circumstances the provisions of 19 CFR 134.46 do not apply. The reference to "AMERICA" is used in the context of an advertisement for the drug store rather than as an indication of the origin of the printed matter. With respect to printed matter, it is our opinion that 19 CFR 134.46 applies to words which may confuse the ultimate purchaser as to the origin of the printed material, and not to places or localities which merely appear in the text or content of the printed material. Similarly in ruling 731394 (December 8, 1988), it was determined that the word "Vermont" on a paperboard wall planner that was a souvenir of the University of Vermont did not trigger the requirements of { 134.46, Customs Regulations. The reference to a place not the place of origin would not confuse an ultimate purchaser as to the true country of origin. The precedents cited in support of issuance of the marking notice are still valid rulings, however we do not consider them applicable to the present situation. For example, LD 85-0003 (724918; July 11, 1984) found that the phrase "Handcrafted American Oak Handle" printed on the blister pack of a kitchen utensil did invoke the application of { 134.46. There was sufficient possibility of that phrase confusing an ultimate purchaser as to the country of origin of the utensil since the phrase referenced the origin of a component of the utensil. This illustrates the key to proper application of { 134.46 - judging the likelihood of confusion caused in the mind of an ultimate purchaser by a subject word or phrase. For example, in precedents cited by the protestant, it was determined that the U.S. address of a store on foreign printed promotional material did not infer the store was the printer (709304; July 27, 1978), and the address of a company on a foreign printed calendar to be given away for advertising was not misleading marking (709655; November 30, 1978). -3- It is the opinion of this office that the reference to "AMERICAN" is not one that would confuse an ultimate purchaser as to the origin of the advertising brochure. The statement is referencing the presence in the U.S. of a particular supermarket chain. HOLDING: Based on the above analysis, it is our opinion the marking of the advertising brochures was in compliance with 19 U.S.C. 1304. Accordingly, no marking violation existed and the protest should be granted on this point. A copy of this letter should be sent to the protestant. Sincerely, Marvin M. Amernick Chief, Value, Special Programs and Admissibility Branch