Country of origin marking on imported luggage

HQ 732234 March 31, 1989 MAR 2-05 CO:R:C:V 732234 pmh CATEGORY: Marking William D. Outman, Esquire Baker & McKenzie 815 Connecticut Avenue, N.W. Suite 1100 Washington, D.C. 20006-4078 RE: Country of origin marking on imported luggage Dear Mr. Outman: This is in response to your letters of March 23, 27 and 31, 1989, in which you request a ruling on behalf of Samsonite Corporation (the importer) regarding country of origin marking on imported luggage. FACTS: The subject merchandise is imported matched luggage which can either be sold in five-piece sets or individually. Approximately 22,000 such sets have been imported for use by a domestic retailer in its "Discover America" marketing campaign. A sample set has been submitted for review. The set consists of a large suitcase, a small suitcase, a tote bag, a cargo bag and a garment bag. With the exception of the garment bag, each piece of luggage has a hangtag attached to its handle on which the registered service mark "Discover America" is prominently displayed. Each of the five pieces of luggage also has a fabric tag sewn into one of its inside seams which bears the name of the importer, the importer's domestic address and the words "Made In Taiwan." Additional material submitted indicates that the "Discover America" campaign is a nationwide marketing program sponsored by the Travel Industry Association of America to promote travel in the United States. Participants in the campaign include retailers, air, rail and bus companies, as well as certain cruise lines and hotels. The subject luggage will be displayed by the retailer in its stores throughout the U.S. amidst prominent "Discover America" promotional material. -2- ISSUE: Whether the country of origin marking on the subject luggage is conspicuous within the meaning of section 304, Tariff Act of 1930, as amended (19 U.S.C. 1304), and section 134.47, Customs Regulations (19 CFR 134.47). LAW AND ANALYSIS: As you are aware, 19 U.S.C. 1304 requires, in general, that all articles of foreign origin imported into the United States be legibly, conspicuously and permanently marked to indicate the country of origin to the ultimate purchaser in the U.S. 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 19 CFR 134.41, 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 Customs Circular MAR-2-RM (dated January 16, 1970) Customs determined that handbags should be marked by means of a fabric label sewn to the lining in a conspicuous place. In HQ 723116, dated September 15, 1983, Customs ruled that the side seam of a handbag was a sufficiently conspicuous place to attach the fabric label bearing the country of origin marking. Customs reasoned that a potential purchaser would open the bag and inspect its interior before buying and that the label would then be easily seen. We find that the same rationale applies in this case. It is our opinion that a potential purchaser would unzip the luggage and inspect the interior before making a purchase and such inspection would immediately reveal the fabric label sewn into the inner seam. The question here is whether the country of origin marking sewn into the inside seam of the luggage is sufficiently conspicuous in light of the registered service mark "Discover America" which appears on a hangtag attached to the handle of the luggage. In determining whether or not a particular country of origin marking is sufficiently conspicuous, Customs will take into account the presence of words or symbols on the article which may mislead the ultimate purchaser as to the country of origin. Consequently, if the words "United States," or "America," the letters "U.S.A.," any variation of such words or -3- 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 of origin, appears on an imported article in such a way so as to be misleading to the ultimate purchaser, special marking requirements are triggered. Section 134.46, Customs Regulations (19 CFR 134.46), requires that in such case, the name of the country of origin must appear legibly, permanently and in close proximity to such words, be in letters of at least comparable size and be preceded by the additional words "Made in," "Product of," or other words of similar meaning. However, section 134.47, Customs Regulations (19 CFR 134.47), provides a special exception from marking where the word "America" appears on the article as part of a trademark or trade name or as part of a souvenir marking. In such circumstances, no "comparable size" requirement exists and the country of origin marking can either be "in close proximity or in some other conspicuous location." In C.S.D. 88-38 (July 18, 1988) Customs ruled that prominent and decorative use of the trademark "Perry Ellis America" displayed on the outside of a T-shirt was not misleading. In that case, the country of origin marking appeared on a label attached to the inside neck of the shirt which is the usual location for marking shirts. Although the words "Made in Zimbabwe" were in letters significantly smaller than those used for the words "Perry Ellis America," Customs found the country of origin mark to be conspicuous and proper because it could be found easily upon casual inspection and was affixed in its usual location. In HQ 723116 (September 15, 1983) Customs found that certain handbags imported from Taiwan and bearing the trademark "American West" on a tag sewn to the outer pocket were properly marked according to 19 CFR 134.47. In that case, as in C.S.D. 88-38, Customs based its determination on the fact that the country of origin marking, which was affixed to a seam inside the handbag, could be readily found and easily read upon casual inspection. In each of the cases noted above, Customs found that use of the word "America" or "American" was not misleading based on the fact that the word was part of a registered trademark and that the country of origin marking was conspicuous. That is, although the country of origin mark in each case was significantly less prominent and was not necessarily located in close proximity to the trademark, it could be found upon casual inspection, was otherwise proper and, therefore, satisfied the requirements of 19 CFR 134.47. -4- Likewise, in the case at hand, it is our opinion that 19 CFR 134.47 applies and that use of the service mark "Discover America" would not mislead the ultimate purchaser. We note that section 134.47 refers to trademarks, tradenames and souvenir markings and does not specifically include service marks. However, the rationale for granting a special exemption for trademarks and tradenames applies to registered service marks, as well. Section 3 of the Lanham Act (15 U.S.C. 1053) provides that service marks used in commerce shall be registrable, in the same manner and with the same effect as are trademarks, and when registered they shall be entitled to the protection provided herein in the case of trademarks. Accordingly, it is our opinion that service marks are comparable to trademarks, tradenames and souvenir markings and that the intent and spirit of section 134.47 was to include registered service marks. After careful examination of the samples and review of the submitted materials, we conclude that the country of origin marking on the subject luggage is sufficiently conspicuous to satisfy the requirements of 19 CFR 134.47. We are of the opinion that the words "Discover America" mark are used to show the retailer's support for the Travel Industry Association of America nationwide marketing campaign that is designated by that registered service mark, and not to mislead or deceive the ultimate purchaser with respect to the origin of the luggage. HOLDING: Based on all the factors in this case and after careful examination of the submitted samples, we find that the luggage, which is conspicuously marked "Made in Taiwan R.O.C." by the use of a fabric tag sewn into one of the inside seams, and which displays a hangtag with the words "Discover America," is legally marked according to 19 U.S.C. 1304 and 19 CFR 134.47. Sincerely, Harvey B. Fox, Director Office of Regulations and Rulings