Country of origin marking of tote bags; Esprit San Francisco; 19 CFR 134.46; design of bag

HQ W560292 February 4, 1997 MAR-2-05 RR:TC:SM W560292 MLR CATEGORY: Marking Harvey Fox, Esq. Siegel, Mandell & Davidson, P.C. 1200 G Street, N.W. Suite 800 Washington, D.C. 20005 RE: Country of origin marking of tote bags; Esprit San Francisco; 19 CFR 134.46; design of bag Dear Mr. Fox: This is in reference to your letter of January 20, 1997, requesting a ruling on behalf of Esprit de Corp. (“Esprit”), regarding the country of origin marking of a tote bag. A sample was submitted with your request. FACTS: The sample is a black textile tote bag measuring approximately 14 ½ x 21 inches, with no closure at the top and two strap handles. The word “Esprit” appears in large white lettering measuring approximately 1 1/4 inches in height across the front of the bag, with the words “San Francisco”, measuring approximately ½ inch in height and also in white lettering, immediately below the word “Esprit”. A white textile label measuring approximately 3/4 x 7/16 inches with the country of origin “Made in China” printed in black lettering is sewn into the inside seam of the bag, approximately 4 ½ inches down from the top of the bag. Attached to one of the strap handles is a paper hangtag with the words “Esprit Accessories” printed on one side, and the style, group, color, bar code, country of origin (“Made in China” measuring 3/4 x 1/4 inches), and suggested retail price of the bag indicated on the other side of the tag. ISSUE: Whether the use of the words “Esprit San Francisco” on the front of the tote bag triggers the special marking requirements of 19 CFR 134.46. LAW AND ANALYSIS: 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 imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the article 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. 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.” United States v. Friedlaender & Co. Inc., 27 CCPA 297, 302, C.A.D. 104 (1940). Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. Customs has recognized that the presence of a geographic location other than the country in which the article was produced on an imported article or its container may mislead the ultimate purchaser as to the true country of origin. Therefore, in cases where the name of a location 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 appears on an imported article or its container, 19 CFR 134.46 provides that 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. Customs has ruled that in order to satisfy the close proximity requirement, the country of origin marking must appear on the same side(s) or surface(s) in which the name of the locality other than the country of origin appears. The purpose of this section is to prevent the possibility of misleading or deceiving the ultimate purchaser as to the actual origin of the imported good. Customs has consistently held that in those cases in which reference to a place other than the country of origin is made on an imported article, but such reference would not confuse the ultimate purchaser, the requirements of 19 CFR 134.46 are not triggered. In Headquarters Ruling Letter (HRL) 732412 dated August 29, 1989, Customs found that the word “Kansas” on different parts of imported jeans did not trigger the requirements of 19 CFR 134.46 because such marking was used as a symbol or decoration and would not reasonably be construed as indicating the country of origin of the article. Likewise, in C.S.D. 8973 (February 2, 1989), Customs held that an imported man’s pullover shirt which prominently displayed the words “Christian Dior, 30 Avenue Montaigne, Paris 75008" across the back, did not invoke the application of 19 CFR 134.46 because the true country of origin of the article was indicated conspicuously on a label inside the neckband. In HRL 733695 dated January 15, 1991, women’s trousers with metal rivets diestamped with the words “Bonjour Paris”, and containing a fabric label sewn into the waistband indicating the country of origin as Hong Kong, were not subject to the requirements of 19 CFR 134.46 since the rivets were decoration on the garment and an integral part of the design. However, in 732486 dated September 5, 1989, a label, crest and hangtag containing the words “Riviera Line” were attached to imported garments. It was determined that while the crest was part of the design of the garment, the hangtag with the phrase “Riviera Line” triggered the special marking requirements of 19 CFR 134.46; therefore, the hangtag had to contain the country of origin printed in a conspicuous manner and placed in close proximity to the phrase “Riviera Line”. The rationale was that a locality other than the country of origin is more likely to cause confusion when it appears on a hangtag attached to a garment because a hangtag is designed to attract the attention of the purchaser and generally contains information about the article. As such, a reference on the hangtag to a locality other than the country of origin of the article to which it is attached is potentially misleading with regard to the garment's country of origin. Similar to the rulings above, in this case we find that the reference “Esprit San Francisco” is part of the decorative embellishment of the tote bag’s design, and since the reference “San Francisco” is not depicted on the hangtag attached to the bag’s strap, the requirements of 19 CFR 134.46 are not triggered. Additionally, in this case, we find the marking on the bag is conspicuous, permanent and legible as the words “Made in China” on the hangtag are large enough and on the same side as the retail price and style information. The tote bag is also marked by means of a sewn-in label approximately 4 ½ inches down from the top of the bag, and we find that the lettering is of sufficient size and boldness to be easily found and read. In HRL 734562 dated August 12, 1992, Customs determined that a fabric label sewn into the inseam of a soccer bag about five inches down from the top of the bag was an appropriate means of marking the bag. Accordingly, we find that the marking on the tote bag satisfies the requirements of 19 U.S.C. 1304 and 19 CFR Part 134. HOLDING: On the basis of the information and sample submitted, we find that the country of origin marking of the tote bag, in the manner described above, satisfies the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134. A copy of this ruling letter should be attached to the entry documents filed at the time the goods are 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, John Durant, Director Tariff Classification Appeals Division