HQ 559118

August 18, 1995

CLA-2 R:C:S 559118 BLS

CATEGORY: Marking

John B. Pellegrini, Esq.

Ross & Hardies

65 East 55th Street

New York, New York 10022-3219

RE: Country of origin marking of wearing apparel; conspicuous location;

comparable size; decoration; trademark; 19 CFR 134.47; HRL 734876

Dear Mr. Pellegrini:

This is in reference to your letter dated March 27, 1995, on behalf of
Phillips Van Heusen Corporation, requesting a ruling concerning the
country of origin marking requirements for certain wearing apparel.

FACTS:

The subject apparel consists of a wide variety of outerwear including
sweatshirts, T-shirts, polo shirts, rugby shirts, and knit pants. Each
of the garments will display the insignia \"GANT USA\". The insignia
will be in three forms: 1) an embroidered label with the word \"GANT\"
in letters approximately 1/4 inch in height superimposed on a shield
with the letters \"U.S.A.\" at the top in letters approximately 3/16
inch in height; 2) a smaller but similarly embroidered label with the
U.S.A. in letters approximately 3/32 in height; and 3) the phrase \"GANT
USA\" in letters 2 inches in height. These insignia will appear in
various locations on various garments. The first insignia will appear in
the neck, on the chest, on the sleeve, on the lower left front, and, in
the case of knit pants, on the rear pocket. The smaller insignia will
appear on the chest and sleeve. The third insignia will appear on the
sleeve. The upper body garments will have a sewn-in label in the neck
which sets forth the country of origin in letters approximately 3/32
inch in height. On the submitted sample, the first insignia, with the
word \"U.S.A.\" in letters approximately 3/16 inch in height, is
embroidered directly in the middle of the neck area. A sewn-in label at
the neck sets forth the country of origin in letters approximately 3/32
inch in height. This label is off-center to the right (when looking at
the front of the shirt), so as not to obscure the insignia.

ISSUE:

What are the country of origin marking requirements for the subject
wearing apparel?

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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 (or its
container) imported into the United States shall be marked in a
conspicuous place as legibly, indelibly and permanently as he 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. Part 134, Customs Regulations

(19 CFR Part 134), implements the country of origin marking requirements
and exceptions of 19 U.S.C. 1304.

The primary purpose of the country of origin marking statute 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 CCPA 297, C.A.D. 104 (1940). As provided in
section 134.41(b), Customs Regulations (19 CFR 134.41(b)), the country
of origin marking is considered conspicuous if the ultimate purchaser is
able to find the marking easily and read it without strain. Section
134.1(d), Customs Regulations (19 CFR 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, or, in the case of a
good of a NAFTA country, the last person in the U.S. who purchases the
good in the form in which it was imported.

The initial issue which must be addressed is whether the words \"GANT
USA\" embroidered in various locations on the subject garments are
potentially misleading to the ultimate purchaser as to the actual
country of origin of the imported article.

In cases where a reference to a locality other than the country of
origin appears on imported merchandise, the special marking requirements
set forth in sections 134.46 and 134.47, Customs Regulations (19 CFR
134.46 and 19 CFR 134.47), may be triggered. The purpose of both
provisions is the same, namely to prevent the ultimate purchaser from
being misled or deceived when the name of a country or place other than
the country of origin appears on an imported article or its container.
The critical difference between the two is that section 134.46, Customs
Regulations (19 CFR 134.46), requires that the name of the actual
country of origin appear \"in close proximity\" to such words and in
lettering of at least comparable size. By contrast, section

134.47, Customs Regulations (19 CFR 134.47), is less stringent,
providing that when as part of a trade name, trademark or souvenir mark,
the name of a location other than the country of origin appears, the
name of the actual country of origin must appear in close proximity or
\"in some other conspicuous location.\" In other words, the latter
provision triggers only a general standard of conspicuousness. In either
case, the name of the country of origin must be preceded by \"Made in\",
\"Product of\", or other similar words. You advise that in the instant
case, none of the insignias which use the words \"GANT USA\", or
\"GANT\" superimposed on a shield with the

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letters \"U.S.A.\" are part of a trade name or registered trademark.
Therefore, the more stringent standard of conspicuousness of 19 CFR
134.46 is applicable.

In applying 19 CFR 134.46, Customs has often distinguished cases where a
place other than the country of origin on an imported article is found
unlikely to confuse the ultimate purchaser as to the country of origin
of the article. For example, in Headquarters Ruling Letter (HRL) 734876
dated May 6, 1993, Customs held that the \"GANT American Collection\"
insignia to be embroidered on the rear panel of a jacket was part of the
design of the jacket and therefore was unlikely to confuse the ultimate
purchaser as to the country of origin. See also HRL 723604 dated
November 3, 1983, where Customs held that the letters \"USA\" displayed
on imported men\'s bikini-style bathing trunks did not trigger the
requirements of 19 CFR 134.46 because such marking was used as a symbol
or decoration and would not be reasonably construed as indicating the
country of origin of the article on which it appeared.

As applied to the instant case, we find that where the insignia with the
words \"GANT USA\", or the word \"GANT\" superimposed on a shield with
the letters \"U.S.A.\" are located on the chest, sleeve, on the lower
left front, of the various garments, and, in the case of the knit pants,
on the rear pocket, the requirements of 19 CFR 134.47 are not triggered
because such marking is used as a symbol or decoration and would not be
reasonably construed as indicating the country of origin of the
particular garment. However, the same rationale does not apply to the
insignia located on the inside of the neck area, which contains the
letters \"U.S.A.\" on a shield, with \"GANT\" superimposed thereon. This
insignia is not visible when the garment is worn, and thus is not part
of the garment\'s design. Therefore, in accordance with 19 CFR 134.46,
the name of the actual country of origin must appear in \"close
proximity\" to \"U.S.A.\" and be of lettering of at least comparable
size. As noted, country of origin marking displaying the words \"MADE IN
HONG KONG\" on the sample shirt is found on a fabric label in the neck
area off-center to the right (when looking at the front of the shirt),
which is the requisite location for country of origin labels for shirts,
T-shirts, jackets, etc., as described in T.D. 54640(6). (Such marking
must be affixed \"on the inside center of the neck midway between the
shoulder seams or in that immediate area\....\" See T.D. 54640(6).)

In this regard, we find that the country of origin marking on the sample
shirt does not comply with the regulatory requirements. While we find
that the words \"MADE IN HONG KONG\" are in close proximity to the
letters \"U.S.A.\", being located approximately one inch to the right of
these letters, the \"U.S.A.\" lettering is approximately 3/16 inch in
height, in contrast to the words \"MADE IN HONG KONG\", which are in
letters approximately 3/32 inch in height. Therefore, the letters are
not \"of at least comparable size\" to the U.S. location and do not
satisfy the strict requirements of 19 CFR 134.46.

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HOLDING:

Embroidered labels with the words \"GANT USA\", or with the word
\"GANT\" superimposed on a shield with the letters \"U.S.A.\" located on
the chest, sleeve, and lower left front of various shirts, and on the
rear pocket of knit pants, are considered part of the design of the
garments and are unlikely to confuse the ultimate purchaser as to the
country of origin of the articles. Therefore, such marking will not
trigger the requirements of section 134.46, Customs Regulations (19 CFR
134.46), because the marking would not be reasonably construed as
indicating the country of origin of the article on which it appears.

However, where the shield insignia with the letters \"U.S.A.\" as on the
sample shirt is located on the inside center of the neck area, the label
is not visible when the shirt is worn and thus is not considered part of
the design of the garment. Further, the ultimate purchaser will normally
look at the neck area to ascertain country of origin and other
information, such as shirt size and fabric content, and therefore may be
confused by reference to a U.S. location, depending on whether
conspicuous country of origin information is located in close proximity
thereto. Therefore, the letters \"U.S.A.\" appearing on the neck area
will trigger the requirements of 19 CFR 134.46.

In connection with the submitted sample, we find that the sewn-in label
with country of origin information, located in the neck area, is in
close proximity to the \"U.S.A.\" lettering since it is approximately
one inch to the right of such lettering. However, such country of origin
lettering is not in \"at least a comparable size\" to the U.S. location,
and therefore must be changed to comply with the size standard set forth
under 19 CFR 134.46.

A copy of this ruling letter should be attached to the entry documents
filed at the time this 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,

John Durant, Director

Commercial Rulings Division