HQ 559748

June 12, 1996

MAR-2-05 RR:TC:SM 559748 DEC

CATEGORY: Marking

Area Port Director

U.S. Customs Service

135 High Street, Room 350

Hartford, Connecticut 06103

RE: Application for Further Review of Protest No. 0401-96-100079

concerning

country of origin marking of imported cigars; C.I.E. 442/44;

C.I.E. 116/45;

C.I.E. 134/45; C.I.E. 1351/61; HRL 734648; HRL 735466; 19

CFR 134.46;

19 CFR 134.25

Dear Sir:

This is in reference to Protest No. 0401-96-100079 and the

Application for Further Review dated February 9, 1996, timely

submitted by Sharrets, Paley, Carter & Blauvelt, P.C. on behalf

of Davidoff of Geneva (CT) Incorporated (Davidoff), against your

issuance of marking notices and/or notices to redeliver in

connection with the entry of imported cigars.

FACTS:

Davidoff is an importer of premium cigars. Counsel had

filed a ruling request dated January 30, 1996, regarding the

proper country of origin marking for imported cigars.

Subsequently, we received the above-referenced Protest on the

same issue. We consolidated the ruling request with the Protest

now at issue. Customs has issued various marking notices to the

Protestant stating that the inside of the boxes of cigars must be

marked to comply with several Customs Information Exchange

(C.I.E.) issuances dating back to 1944. Counsel and a

representative from Davidoff met with members of our office on

May 20, 1996.

The articles at issue are retail hinged lid boxes of wood or

cardboard imported containing cigars, cigarillos, or mini

cigarillos. Counsel states that virtually all of the articles at

issue are sold in a box as one retail unit and that many of the

boxes are

sealed until they reach the ultimate purchaser. Counsel and

protestant also stated during the meeting that the cigars and

cigarillos are never sold individually from the boxes in which

they are imported. The four types of boxes at issue are

described as follows:

1\. Wooden box which measures approximately 6-13/16 inches

wide by

1-5/16 inches high by 5-5/8 inches deep with a hinged top and

brass closure and will contain 20 individually wrapped cigars.

When imported, the brass closure may be opened, but the cigars

are sealed in the box with an air tight cellophane wrapping. The

phrase \"Zino Relax Sumatra\" is printed on the exterior of the box

on the top, front, left-side, and right-side panels as well as on

the inside of the lid. Counsel indicated at the May 20, 1996,

meeting that the Protestant\'s parent company has applied for a

trademark for \"Zino Relax Sumatra\". The country of origin (on

the sample submitted - \"Made in Switzerland\") is printed on the

bottom panel of the exterior of the box. On the inside of the

lid the phrase \"Special Selection Zino Relax Sumatra Humidor-Pack

100%Tobacco\" is printed. The cigars contained in these boxes

will virtually always be sold to the consumer in the box as one

retail unit. Counsel indicated at the May 20, 1996, meeting

that, in rare instances, authorized sellers of Davidoff products

may open the retail containers and place the wrapped cigars in a

wooden cigar display box. Counsel and the Davidoff

representative explained that this display box is used by the

tobacconist when discussing various types of cigars with

customers. The wooden display box, as indicated in photographs

submitted by counsel, are clearly and prominently marked with

information about the country of origin of the particular cigar\'s

wrapper, filler, and binder.

2\. Wooden box which measures approximately 8 inches wide

by 3-7/8 inches deep and 1-3/8 inches high. This box has a

hinged top and is sealed using a small nail and will contain 100

unwrapped mini cigarillos when imported. The phrase \"Davidoff

Mini Cigarillos\" is printed on the exterior of the box on the

top. Written on the front of the box is \"100% Tobacco Davidoff

Special Selection.\" On the left-side and right-side panels, the

phrase \"100 Mini Cigarillos\" is printed. The country of origin

(on the sample submitted - \"Made in Denmark\") is printed on the

back panel of the exterior of the box. On the inside of the lid,

the phrase \"Davidoff Mini Cigarillos\" is printed. The cigarillos

contained in these boxes will always be sold to the consumer in

the box as one retail unit. The Davidoff representative

indicated that the company does not believe it to be sanitary to

break up the boxes of mini cigarillos and offers these articles

for sale exclusively by the box.

3\. Wooden box which measures approximately 4 inches wide

by 3-7/8 inches deep and 1-3/8 inches high. This box has a

hinged top and is sealed using a

small nail and will contain 50 unwrapped mini cigarillos when

imported. This box will be completely wrapped in cellophane.

These mini cigarillos are always sold by the box. The phrase

\"Davidoff Mini Cigarillos\" is printed on the exterior of the box

on the top. Written on the front of the box is \"Davidoff 100%

Tobacco Special Selection.\" On the left-side and right-side

panels, the phrase \"100 Mini Cigarillos\" is printed. The country

of origin (on the sample submitted - \"Made in Denmark\") is

printed on the back panel of the exterior of the box. On the

inside of the lid the phrase \"Davidoff Mini Cigarillos\" is

printed.

4\. A white cardboard box which measures approximately 3-5/8 inches wide
by 3/8 inch high and 3-1/16 inches deep with a

hinged top containing 10 unwrapped cigarillos. The box is

wrapped completely in cellophane. The phrase \"Made in Denmark\"

is printed on the bottom panel on the exterior of the box. The

mini cigarillos contained in these boxes will be sold exclusively

in their imported boxes.

ISSUE:

Whether the country of origin marking on the various

containers of cigars and cigarillos as described above is in

compliance with the requirements of 19 U.S.C. 1304 and 19 CFR

Part 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 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.\" United States

v\. Friedlaender & Co., 27 C.C.P.A. 297 at 302 (1940). Part 134,

Customs Regulations (19 CFR Part 134), implements the country of

origin marking requirements and exceptions of 19 U.S.C. 1304.

Section 134.31(b), Customs Regulations (19 CFR 134.41(b)), states

that a marking should be at least sufficiently permanent to

insure that, in any reasonably foreseeable circumstance, the

marking shall remain on the article or its container until it

reaches the ultimate purchaser. The ultimate purchaser in the

U.S. must be able to find the marking easily and read it without

strain.

In 1944, 1945, and 1961, Customs issued various C.I.E.

letters regarding the country of origin marking requirements for

cigars imported in boxes. In C.I.E. 442/44,

dated September 28, 1944, it was stated that in order to insure

that ultimate purchasers of either individual cigars or boxes of

cigars may be apprised of the name of the country of origin of

the cigars, marking to indicate such origin shall appear both on

the inside of the lid of the box and on the outside of the box.

Later C.I.E. letters specifically stated that this marking

requirement was applicable to cigars imported in \"special\" or

\"premium\" containers with hinged lids. C.I.E. 116/45, dated

March 13, 1945. In this document, Customs described some of

these \"special\" or \"premium\" boxes as being made of natural cedar

wood or handsome mahogany cabinets with a highly polished surface

containing 50 to 100 cigars. In contrast, the boxes of cigars at

issue in this protest contain only 20 full-sized cigars, 100 or

fewer mini cigarillos, or only ten cigarillos and, while the

wooden boxes are not inexpensive, they are not made of the same

\"special\" or \"premium\" wood as was described in C.I.E. 116/45 nor

are they highly polished.

Subsequently, C.I.E. 134/45, dated March 19, 1945, canceled

C.I.E. 116/45. C.I.E. 134/45 stated that imported cigars in

\"special\" or \"premium\" containers with hinged lids must be marked

inside and outside in accordance with C.I.E. 442/44. This C.I.E.

further provides that other special containers of cigars shall be

marked on the outside of the container in a conspicuous place so

the marking will be visible to a retail purchaser of the

individual cigars. C.I.E. 1351/61 cited to the marking

requirement first articulated in C.I.E. 442/44.

When cigar containers are made from a premium wood or are

lavishly finished, they are more likely to be displayed with the

lids open so that an ultimate purchaser may observe the premium

container. It is the position of the Customs Service that this

line of C.I.E.\'s applies only to \"special\" or \"premium\"

containers analogous to those described in C.I.E. 116/45. The

cigar boxes at issue in this Protest are not \"special\" or

\"premium\" cigar boxes analogous to those described in the

C.I.E.\'s.

Moreover, since the cigars and cigarillos are never sold

individually from the boxes in which they are imported, the

purpose for the required marking on the inside lid as set forth

in the above C.I.E.\'s does not exist under the facts of this

case. We therefore find that the marking on the bottom panel of

the box of 20 cigars is in a conspicuous location because the

marking will be readily visible to an ultimate purchaser who

inspects the cigar box. Similarly, the country of origin marking

on the back panel of the mini cigarillo boxes containing 50 or

100 mini cigarillos and the cardboard box containing ten

cigarillos is conspicuously marked as well.

While Customs generally does not consider a marking

appearing on the bottom of a container to be in a conspicuous

location (see Headquarters Ruling Letter (HRL) 734648, dated July

14, 1992), in HRL 735466, dated August 4, 1994, we concluded that

various small appliances which were imported into the United

States for domestic sale in retail boxes with dimensions akin to

shoe boxes or, at most, twice that size, were properly marked.

Although the retail boxes in HRL 7345466 were clearly marked

\"Made in Mexico\" on the bottom panels, they were also marked on

two side panels where U.S.-references (domestic addresses)

appeared. Considering the relatively small size of the appliance

boxes, their ease in handling, and the additional side panel

markings, we allowed the bottom panel markings. In the instant

case, the retail cigar boxes are significantly smaller and

lighter than the articles addressed in HRL 735466, and an

ultimate purchaser may more easily manipulate the cigar box to

reveal the bold and stamped-in country of origin marking on the

bottom panel of the box of 20 cigars. Similarly, the wooden

boxes containing 100 mini cigarillos and the wooden box

containing 50 mini cigarillos are conspicuously marked with the

country of origin on the back panel of these containers. The

marking on the bottom panel of the small and very light cardboard

box containing 10 cigarillos is conspicuous and an ultimate

purchaser may easily find the country of origin marking on the

bottom panel of the cardboard container.

The phrase \"Zino Relax Sumatra\" is printed on the exterior

of the box containing 20 cigars on the top, front, left-side, and

right-side panels as well as on the inside of the lid. Section

134.47, Customs Regulations (19 CFR 134.47), 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 State appears, 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. In other

words, if the question concerns a trade name or trademark, the

country of origin marking needs only to meet the general standard

of conspicuousness. Although 19 CFR 134.47 applies when a

locality reference appears as part of a trademark, Customs has

accepted a filed application with the U.S. Patent and Trademark

Office as sufficient evidence of a trademark for purposes of 19

CFR 134.47 since the regulation does not specify what evidence is

needed to establish a trademark. Therefore, in this case,

although only an application has been filed, Customs will allow

the more lenient requirements of 19 CFR 134.47 to apply for

purposes of this Protest.

In the May 20, 1996, meeting, counsel presented The Tobacco

Encyclopedia published by the Tobacco Journal International.

After a review of this document, Customs recognizes that the term

Sumatra in the context of purchasing cigars does not readily

connote that the cigars that are a product of Sumatra. Rather, a

Sumatra cigar

is a generic term for light-colored cigars as compared to the

dark or black Brazil cigars. In this case, the word \"Sumatra\" is

used in the context of a trademark and Customs is

satisfied that the word does not serve to confuse the ultimate

purchaser of the origin of

the cigars. We find the country of origin marking of the box of

20 cigars which appears on the bottom panel of the box to be a

conspicuous location. Consequently, we find the country of

origin marking on the box of 20 cigars to meet the requirements

of 19 U.S.C. 1304 and 19 CFR Part 134.

In rare instances, an authorized seller of Davidoff products

may open the retail containers of 20 cigars and place the wrapped

cigars in a wooden cigar display box. Counsel and the Davidoff

representative explained that this display box is used by the

tobacconist when discussing various types of cigars with

customers. The wooden display box is marked with information

about the origin of the particular cigar\'s wrapper, filler, and

binder. However, the origin of the cigars is not provided.

Section 134.25, Customs Regulations (19 CFR 134.25),

requires that containers of repackaged J-List articles or

articles incapable of being marked must be marked to indicate the

country of origin of the contents by either the importer who

repackages the articles or the purchaser or transferee of such

articles who does the repacking, and that the importer must

certify to the port director on entry that the repacked

containers will be marked or that he will notify the purchaser or

transferee of such marking requirements. In this case, the

decorative wrapping of the individual cigar represents the

cigar\'s container. Accordingly, the marking requirements of 19

U.S.C. 1304 and 19 CFR 134.11, mandate that the outermost

container which includes the cigar wrapper in which the article

will reach the ultimate purchaser must be marked in a conspicuous

place as legibly, indelibly and permanently as its nature will

permit. Any method of marking at any location will be acceptable

as long as the country of origin will appear conspicuously on

such containers. Consequently, the protestant must certify to

the port director that to the extent that the imported cigars are

removed from the marked containers in which the cigars are

imported, the wrappers on cigars which are removed will be marked

to indicate their country of origin.

The wood box containing 50 mini cigarillos with the country

of origin denoted on the back panel of the wood box and the

cardboard box containing 10 cigarillos with the country of origin

denoted on the bottom panel of the cardboard package will be

wrapped completely in cellophane when imported. Since these

packages will be completely sealed in cellophane wrapping, a

marking on the inside lid of these cigar boxes will not serve the

ultimate purchaser since it will not convey origin information to

the ultimate purchaser at the time of purchase. In situations

where the article is completely sealed when it is sold at retail,

the country of origin marking should appear

conspicuously on the outermost retail container. After examining

the samples submitted with this Protest, we find that these

containers are conspicuously marked with their country of origin.

HOLDING:

The cigar boxes as described above are properly marked

pursuant to 19 U.S.C. 1304. To the extent that the cigars are

removed from the imported marked containers prior to reaching the

ultimate purchasers, the protestant must comply with the

certification requirements set forth in 19 CFR 134.25.

Accordingly, the protest should be granted subject to compliance

with 19 CFR 134.25.

In accordance with Section 3A(11)(b) of Customs Directive

099 3550-065, dated August 4, 1993, Subject: Revised Protest

Directive, this decision should be mailed by your office to the

protestant no later than 60 days from the date of this letter.

Any reliquidation of the entry in accordance with the decision

must be accomplished prior to mailing of the decision. Sixty

days from the date of the decision the Office of Regulations and

Rulings will take steps to make the decision available to customs

personnel via the Customs Rulings Module in ACS and the public

via the Diskette Subscription Service, Freedom of Information Act

and other public access channels.

Sincerely,

John Durant, Director

Tariff Classification and Appeals

Division