Country of origin marking of imported backpacks; 19 U.S.C. § 1304; 19 C.F.R. § 134.

November 28, 2016 HQ H272689 CLA-2 OT:RR:CTF:TCM H272689 TSM CATEGORY: Marking Mr. Peter Forte J. M. Rodgers Co. Inc. 1975 Linden Blvd Elmont, New York 11003 RE: Country of origin marking of imported backpacks; 19 U.S.C. § 1304; 19 C.F.R. § 134. Dear Mr. Forte, This is in response to your request, on behalf of U.S. Luggage Co. LLC, dated November 18, 2015, for a ruling regarding the acceptability of proposed country of origin markings for imported backpacks. A sample was submitted for our consideration. FACTS: U.S. Luggage Co. LLC (“U.S. Luggage”) is an importer of backpacks. The backpacks at issue are made in China. Looking at the interior, we note that U.S. Luggage has a sewn-in label marked with the phrase “Made in China,” which is printed alongside the phrase “Designed in the USA.” Examining the exterior, we note that U.S. Luggage has attached hang tags to the textile handle at the top of the backpack. In addition to some marketing material, the hang tags include the phrase “Made in China.” We further note that a patch printed with the phrase “Designed in New York,” is stitched into the upper portion of the backpack which will rest against the wearer’s back. According to the record, U.S. Luggage has filed an application to register this trademark with the United States Patent and Trademark Office (“USPTO”). ISSUE: Whether the proposed marking of imported backpacks satisfies the country of origin marking requirements set forth in 19 U.S.C. § 1304 and 19 C.F.R. § 134. LAW AND ANALYSIS: Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. § 1304), provides that unless excepted, every article of foreign origin imported into the United States 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 United States, 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.” See United States v. Friedlander & Co., 27 C.C.P.A. 297, 302 (1940). Part 134 of the U.S. Customs and Border Protection (“CBP”) Regulations (19 C.F.R. § 134) implements the country of origin marking requirements and exceptions of 19 U.S.C. § 1304. Section 134.1(b), CBP Regulations (19 C.F.R. § 134.1(b)), defines “country of origin” as “the country of manufacture, production, or growth of any article of foreign origin entering the United States. 19 C.F.R. § 134.1(d) defines the "ultimate purchaser" generally as the last person in the U.S. who will receive the article in the form in which it was imported. 19 C.F.R. § 134.41(b) states that the ultimate purchaser in the United States must be able to find the marking easily and read it without strain. The degree of permanence of the marking should be at least sufficient to insure that in any reasonably foreseeable circumstance, the marking shall remain on the article (or its container) until it reaches the ultimate purchaser unless it is deliberately removed. The marking must survive normal distribution and store handling. 19 C.F.R. § 134.44(c), states the following: When tags are used, they must be attached in a conspicuous place and in a manner which assures that unless deliberately removed they will remain on the article until it reaches the ultimate purchaser. 19 C.F.R. § 134.46, states the following: In any case 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 location 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 appear 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 of the article, 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. 19 C.F.R. § 134.47, states the following: 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. Upon review, we find that the “Made in China” hang-tags and sewn-in labels on the backpacks at issue meet the requirements of 19 U.S.C. § 1304 that every article of foreign manufacture be marked in a conspicuous place legibly, indelibly and permanently, in such a manner as to indicate to the ultimate purchaser the country of origin of the article. Moreover, we find that the “Made in China” labels on the backpacks at issue meet the requirements of 19 C.F.R. § 134 because ultimate purchaser in the United States will be able to find the marking easily and read it without strain. We are also of the view that the marking will survive normal distribution and store handling. We further find that the reference to “New York” in the “DESIGNED IN NEW YORK” trademark, as well as the words “Designed in USA,” appearing on the backpacks, may mislead or deceive the ultimate purchaser with regard to the actual (Chinese) origin of the backpacks. This triggers the special marking requirements of 19 C.F.R. § 134.46 and 19 C.F.R. § 134.47. Therefore, the name of the country of origin preceded by “Made in” or “Product of” should appear legibly and permanently in close proximity to the reference to “New York” and “USA.” Upon review and examination of the sample, we find that the “Made in China” hang tags and sewn-in labels appear legibly and in close proximity to the words “New York” and “USA.” Although the “Made in China” hang tags are removable, we note that they are attached in a conspicuous place and in a manner which assures that they will remain on the articles until they reach the ultimate purchaser, consistent with 19 C.F.R. § 134.44(c). Based on the foregoing, we conclude that the requirements of 19 C.F.R. § 134.46 and 19 C.F.R. § 134.47, as well as 19 C.F.R. § 134.44(c), are satisfied. HOLDING: The proposed “Made in China” markings on the backpacks at issue satisfy the marking requirements of 19 U.S.C. § 1304 and 19 C.F.R. § 134. A copy of this ruling letter should be attached to the entry documents filed at the time the merchandise is entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction. Sincerely, Ieva K. O’Rourke, Chief Tariff Classification and Marking Branch