# Diamond Match Co. v. United States

> Court of Customs and Patent Appeals · April 11, 1962 · 49 C.C.P.A. 52

URL: https://www.frixlaw.com/law-library/cases/6823023

## Case

- **Full name:** The Diamond Match Company v. United States (Winter, Wolff & Co., Inc., Party in Interest)
- **Court:** Court of Customs and Patent Appeals
- **Decided:** April 11, 1962
- **Citations:** 49 C.C.P.A. 52; 1962 CCPA LEXIS 296
- **Precedential status:** Published
- **Opinion:** Dissent by Martin
- **Judges:** Kirkpatrick, Martin, Rich, Smith, Worley
- **Cited by:** 3 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6823023

## Opinion text

Martin, J.,
dissenting:
I dissent from the majority opinion for the following reasons. 2 I believe that the section pertaining to the marking of imported merchandise was passed by the Congress so that every American citizen, the ultimate consumer, will be given the opportunity, (wherever possible, to ascertain the country of origin of every imported item sold in this country so that he can determine for himself whether he desires to purchase such item.
It is common knowledge that many consumers prefer to “buy American” or will not purchase merchandise originating in a particular country for one reason or another. These are the “ultimate purchasers” for whom the law was passed. Because of this attitude of these consumers, the domestic manufacturer’s competitive position is improved and he has the right to protect this position. This is the reason that appellant filed the protest and brought this action.
Besides situations similar to that of the case at bar there is another set of circumstances which demonstrates very readily that Congress intended the “ultimate purchaser” to be the ultimate consumer whenever possible. I refer to the situation where an importer endeavors to pawn off domestic goods on the public as if they originated in a foreign country, by placing the domestic merchandise in an imported bottle or box. A case in point would be where a domestic perfume manufacturer uses bottles manufactured in France stamped “made in France” thereby giving the impression that the perfume itself originated there. There can be no doubt in this situation that it would serve no purpose to mark the container in which such bottles were imported “Bottles made in France.” In this instance what would be accomplished if the perfume manufacturer was declared to be the “ultimate purchaser” ?
Congress has excepted an imported article from being marked under certain circumstances, such as when it is impracticable to mark it. This court has added another exception, i.e. when the imported article is used as material to produce a new article in the United States. 3 However, it seems to me, if I am correct about the motivating force behind this law, the exceptions should be invoked only when there is a clear indication that such action is warranted under the statute or when it is clear that a neto article has been manufactured. Such clear indication is not present here in either situation. Furthermore, I do not think it was the intent of Congress that the container marking exception should be invoked merely because its application is possible. *62 Congress did not intend alternative procedures, i.e. either mark the article or the container at the whim of the importer.
The legislation itself clearly indicates that Congress intended that the imported article itself be marked and any other procedure was an exception to that requirement. Section (b) of 19 U.S.C. 1304 reads in part:
Whenever an article is excepted, under subdivision (3) of subsection (a) of this section from the requirements of marlcing, the immediate container * * * of such article * * * shall be marked * * *. [Emphasis added.] 4
Since there is no doubt that the imported individual stick is capable of being marked 5 and a very great doubt exists that a new article has been manufactured in the United States in this instance, it appears to me that to endeavor to apply the container marking provision is unwarranted and, if successful, would unnecessarily thwart the will of Congress that the ultimate consumer be apprised of the fact that the sticks were made in Japan.
It should be noted that the Secretary of the Treasury believed that exception (D), the container marking provision, required limitation so that this exception would be interpreted to carry out the intent of Congress rather than impede it. Customs Regulation 11.10 states:
11.10 Exceptions to marlcing requirements. — (a) Articles within any specification in section 304(a) (3), Tariff Act of 1930, as amended, are hereby excepted from the requirement of marking. The marlcing of the container of an article will reasonably indicate the origin of such article within the meaning of section 304(a) (S) (D) if the article is imported * ♦ * in a container which will reach the ultimate purchaser in the United States unopened. * * * [Emphasis added.]
In other words, unless the container will reach the “ultimate purchaser” unopened the exception cannot be invoked. If I am correct in properly identifying the “ultimate purchaser” in this situation, then this exception cannot be invoked here because the container will not “reach the ultimate purchaser [the ice cream consumer] in the United States unopened.”
It is difficult for me to understand how the will of Congress can be fulfilled if a manufacturer of the ice-cream-on-a-stick is considered to be the ultimate purchaser. This manufacturer, who is in business, I assume, to make a profit, will endeavor to purchase sup *63 plies as cheaply as possible and, if the imported sticks are less expensive than the domestic ones, he most likely will purchase the former. If he will benefit by not disclosing to the public the origin of the imported sticks he will not do so, so long as he is not penalized. It is obvious that the penal section was passed with this in mind. Therefore, if such a manufacturer is held to be the ultimate purchaser the whole purpose of the legislation could be nullified in a situation where the sticks can readily be marked.
So much for the section itself as it applies to the merchandise involved. I come now to the discussion of United, States v. Gibson-Thomsen Co., Inc., supra, upon which the majority relies so heavily to support its position that the ultimate purchaser is the manufacturer of the ice-cream-on-a-stick and hence exception (D) applies. Clearly the facts in that case are distinguishable from those at bar. There this court held that the imported wooden handles became integrated permanently with the bristles to form an entirely new article, a toothbrush or hair brush. Here the article itself is ice cream and the sticks are used as a convenient means for eating it. The sticks are not integral parts of the article itself any more than imported cans for domestic beer or imported bottles or drums after they have been filled with a domestic liquid. The sticks, like beer cans, are discarded when they have fulfilled their purpose. Also processing is required in both situations. This court in the Gibson-Thomsen case distinguished bottles and drums from wooden handles to be made into brushes. The reason for this distinction is obvious. As previously stated, if the importation is merely the material which is used in the United States in the manufacture of a new article, the manufacturer is considered the ultimate purchaser of the imported material. However, where the imported article is merely combined with a domestic article and does not lose its identity, the ultimate purchaser is not the one who merely combines the two articles. In this instance I believe we have the combination of two distinct articles and the imported one does not lose its identity and can readily be marked as to its country of origin so that the will of Congress could be fulfilled. I believe it should be so marked.
In this dissent I shall consider only the primary use of these sticks in the United States, as sticks for ice cream. However, I believe the sticks should be marked when the other uses of record are made of them.
This decision permits marking the container under the “new article doctrine” because “the ultimate purchaser” is considered to be the domestic manufacturer. See United States v. Gibson-Thomsen Co., Inc., 27 CCPA 267, C.A.D. 98.
It should be remembered that exceptions to general provisions must be strictly construed. United States v. McElvain et al., 272 U.S. 633, 639 .
It has been argued that if the stick was marked, the purchaser might think the ice cream itself was made in Japan. Of course this could be avoided by marking “Stick made in Japan.” Others have contended that such marking could be obscured or covered by placing the marked portion in the ice cream. However, such action would constitute violation of the penal section of this provisions. 19 U.S.C. 1304(e), which states:
(e) If any person shall, with intent to conceal the information given thereby or contained therein, deface, destroy, remove, alter, cover, obscure, or obliterate any mark required under the provisions of this chapter, he shall, upon conviction, be fined not more $5,000 or imprisoned not more than one year, or both. * * *

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6823023. Public record. Not legal advice.