HQ 735024

April 7, 1994

Mar-2-05 CO:R:C:V 735024 AT

CATEGORY: Marking

Andrew G. Halpern, Esq.

Strasburger & Price, L.L.P.

901 Main Street

Suite 4300

Dallas, Texas 75202

RE: Country of origin marking of reading glasses imported from

various foreign countries; conspicuous; close proximity;

U.S. locality; trademark/trademark application; 19 CFR

134.46; 19 CFR 134.47; HQ 734469; refers ultimate purchaser

to look for origin in another location

Dear Mr. Halpern:

This is in response to your letters dated March 4, September

1 and November 22, 1993, on behalf of The Bonneau Company

(Bonneau), requesting a ruling on the country of origin marking

of imported reading glasses with hang tags attached before or

after importation into the U.S. A sample pair of reading glasses

and two hang tags with the proposed marking which are to be

attached were submitted with your letters.

FACTS:

You state that Bonneau intends to import reading glasses

from various countries to be sold at retail stores in the U.S.

You also state that Bonneau\'s normal course of business is to

source its products from manufacturers overseas and receive

direct shipment from the manufacturers at the port of Dallas-

Fort Worth, Texas. You claim that each of these manufacturers is

responsible for marking the earpiece of each pair of reading

glasses with the country of origin. The country of origin

marking is designated on the reading glasses at the time of

manufacture by imprinting the marking into the plastic or metal

earpiece. Examination of the sample reading glasses indicates

that the country of origin marking is printed on the earpiece in

lettering approximately 4.5 point (a point is a unit of

measurement approximately equal to 0.01384 inches or nearly 1/72

inches and all type sizes are a multiple of this unit).

You also state that because reading glasses are considered

medical devices, Food and Drug Administration (F.D.A.) labeling

regulations require the disclosure of the manufacturer or

distributor and a U.S. place of business on a label. In order to

facilitate Bonneau\'s compliance with the F.D.A. labeling

requirements, Bonneau proposes to have hang tags attached to the

nose piece of each pair of reading glasses by the manufacturer or

by Bonneau in the U.S. The front of the first sample hang tag is

marked with the words \"SparePair USA\" in blue lettering

approximately 7.5 point. You state that Bonneau has filed an

application dated May 7, 1993 for trademark registration with the

United States Patent and Trademark Office for the trademark

\"SparePair USA\" (a copy of the application was submitted). The

front side of the other sample hang tag is marked with the words

\"PennOptics\" (approximately 13 point lettering) and Pennsylvania

Optical (approximately 4.5 point lettering). You indicate that

\"PennOptics is a registered trademark (Registration No.

1,540,276) and \"Pennsylvania Optical\" is a trade name of the

Bonneau Company. Other information such as the price, power of

the lenses (diopter) and style of glasses also appears on the

front side of both labels.

Bonneau proposes to mark the back portion of the hang tags

with the words \"Made in Country Indicated On Glasses\" in black

lettering approximately 4.5 point followed by the words \"Bonneau

Company, Dallas, TX 75234, U.S.A.\" in the same type size.

You contend that since each pair of reading glasses is

properly marked with the country of origin on the earpiece the

proposed marking \"Made in Country Indicated On Glasses\" printed

on the back of the hang tag satisfies the marking requirements of

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

ISSUES:

Does the marking on the reading glasses as described above

satisfy the country of origin marking requirements set forth in

Section 304 of the Tariff Act of 1930, as amended?

Does the proposed marking on the hand tag marked in the

manner described above satisfy the marking requirements of 19 CFR

134.46 and 19 CFR 134.47?

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 U.S. 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 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., 27

C.C.P.A. 297 at 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. Section 134.1(d), Customs Regulations (19 CFR

134.1(d)) defines ultimate purchaser as \"generally the last

person in the U.S. who will receive the article in the form in

which it was imported.\" The definition then gives examples of

who might be the ultimate purchaser if the imported article is

used in the manufacture, if the imported article is sold at

retail in its imported form and if an imported article is

distributed as a gift. If an imported article is to be sold at

retail in its imported form, the purchaser at retail is the

ultimate purchaser. In this case, the ultimate purchaser of the

reading glasses is the consumer who purchases the product at

retail.

Are The Reading Glasses Conspicuously Marked With The Country Of

Origin?

Section 134.41, Customs Regulations (19 CFR 134.41),

provides that 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 this case, we find that the country of origin marking

printed on the earpiece is conspicuous. The country of origin

marking is easy to find since it is placed on the earpiece; a

location where an ultimate purchaser would expect to find such a

mark prior to purchasing the sunglasses. Furthermore, the

country of origin marking, printed in approximately 4.5 point

lettering, is both easy to find and can be read without strain.

Does The Marking On The Hang Tag Marked In The Manner Described

Above Satisfy The Marking Requirements Of 19 CFR 134.46 AND 19

CFR 134.47?

The second issue presented in this case is whether the

proposed marking \"Made in Country Indicated On Glasses\" printed

on the attached hang tag is an acceptable country of origin

marking in view of the fact that the words \"SparePair USA\" or
\"Pennsylvania Optical\" appear on either the front side of the

hang tag and the words \"Bonneau Company, Dallas, TX, U.S.A.\"

appear on the back of the hang tag directly above or below the

country of origin marking.

In determining whether the marking is acceptable, Customs

will take into account the presence of words or symbols on an

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 letters, or the name of any city or locality other than the

country of origin appear on the imported article, special marking

requirements are triggered.

Section 134.46, Customs Regulations (19 CFR 134.46),

requires that when the name of any city or locality in which the

article was manufactured or produced, appears 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 a comparable size, the name of the country of

origin preceded by \"Made in,\" \"Product of,\" or other words of

similar meaning. 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 goods. Section 134.47,

Customs Regulations (19 CFR 134.47), requires a slightly less

restrictive marking than 134.46 when the location name other than

the country of origin appears as part of a trademark or trade

name. Under 19 CFR 134.47, when the name of a place other than

the country of origin appears as part of a trademark or trade

name or as part of a souvenir marking, the actual country of

origin must appear in close proximity to the place name \"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 meet the general standard of

conspicuousness. Both 134.46 or 134.47, require that the name of

the country of origin must be preceded by \"Made in,\" Product of,\"

or words of similar meaning.

The words \"SparePair USA\", and \"Pennsylvania Optical\" which

appear on the front side of the hang tags trigger the special

marking requirements of 19 CFR 134.47 in that they are either a

trademark or trade name. With respect to the mark \"SparePair

USA\", Customs has ruled that the filing of a trademark

registration request, as exhibited here, is considered sufficient

evidence to establish a trademark for purposes of 19 CFR 134.47.

See, HQ 734455 (July 1, 1992). Thus, the country of origin

marking needs only meet the general standard of conspicuousness. For the
reasons stated below, we find that the marking \"Made in

Country Indicated On Glasses\" printed on the back of the hang

tags satisfy the requirements of 19 CFR 134.47. However, if for

some reason the application for registration is denied, then the

requirements of 19 CFR 134.46 will have to be complied with.

The special marking requirements set forth in section 134.46

are triggered by the presence of the words \"Dallas, TX U.S.A.\"

printed directly above the country of origin marking.

Accordingly, the actual country of origin of the reading glasses

must appear \"in close proximity\" to the U.S. reference and in

lettering of at least a comparable size. Therefore, the critical

issue presented in this case is whether the marking \"Made in

Country Indicated On Glasses\" printed directly below the words

\"Dallas, TX U.S.A.\" along with the country of origin marking on

the frames satisfies the country of origin marking requirements

of 19 CFR 134.46.

In HQ 734469 (September 22, 1992), Customs ruled that hang

tags which were affixed to conspicuously marked sunglasses and

marked with the words \"Country of Origin Indicated On Sunglasses\"

in close proximity and in at least a comparable size to the non-

origin geographical reference \"Dallas, TX U.S.A.\" satisfied the

country of origin marking requirements of 19 CFR 134.46.

Similarly, in this case, we find that the proposed method of

marking satisfies the requirements of 19 CFR 134.46. The words

\"Made in Country Indicated On Glasses\" appears in close proximity

and at least in comparable size to the U.S. reference \"Dallas,

Texas U.S.A.\" Moreover, as in HQ 734469, the actual country of

origin is conspicuously marked on the earpiece of each pair of

reading glasses. Because the country of origin marking \"Made In

Country Indicated on Glasses\" is conspicuously located on the

back of the hang tags the marking requirements of 19 CFR 134.47

are satisfied as well.

HOLDING:

The proposed method of marking hang tags attached to

conspicuously marked reading glasses by the manufacturer or

Bonneau in the U.S., as described above, satisfies the

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

Sincerely,

John Durant, Director

Commercial Rulings Division