Interpretation ID: 86-3.43

TYPE: INTERPRETATION-NHTSA

DATE: 06/09/86

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Stephen T. Waimey and Dean Hansell, Esqs.

TITLE: FMVSS INTERPRETATION

TEXT:

Stephen T. Waimey and Dean Hansell, Esqs. Donovan Leisure Newton & Irvine 333 South Grand Avenue Los Angeles, CA 90071

Dear Messrs. Waimey and Hansell:

This responds to your letter asking two questions about Part 541, Federal Motor Vehicle Theft Prevention Standard. First you asked if the 17-character vehicle identification number (VIN) required on original equipment engines and transmissions had to appear in a single line. You stated that your Client would like to mark the engines and transmissions by splitting the VIN into two groups, with the second group of characters directly below the first. Such markings could comply with Part 541. Second, you asked if your client could use a trademark that has less than one centimeter high for marking replacement parts. Markings less than one centimeter high would not comply with the requirements of Part 541 applicable to replacement parts. These conclusions are explained in detail below.

If a vehicle manufacturer was not identifying its engines and/of transmissions with at least an 8-Character VIN derivative as of October 24, 1984, S541.5(b)(1) requires the engine and transmission to be marked with the full 17-character VIN. That section does not require that the 17 Characters appear on the same line. However, the preamble to the final rule establishing Part 541 explained the-policy reasons for requiring the full 17-Character VIN as follows:

One of the primary purposes of the Theft not is to make it easier for law enforcement agencies to establish that a vehicle or a major part is stolen. ... If this purpose is to be promoted,this standard must ensure that police officers learning of suspicious, potentially stolen vehicle parts can quickly verify whether those parts are stolen. 50 FR 43168, October 24, 1985.

In the agency's view, S511.5(b)(1) requires that the full 17-character VIN be marked in such a way that police can easily determine what VIN is marked on the part, and then check to see if that part is stolen. If a VIN is divided into segments, the proper sequence of those segments must be readily determinable. If the VIN here placed on the lines, beginning on the first line with the remainder of the VIN directly below the first line, as suggested in your letter, we do not believe it would be confusing or difficult for law enforcement officers to easily read the marking in the correct order. Accordingly, we conclude that marking the VIN on two separate lines, with the second directly below the first, would not violate any of the requirements of Part 541.

Your second question Has whether your Client could mark replacement parts by using a trademark that was one centimeter wide but less than one centimeter high. You explained that your client's trademark is wider than it is tall. After noting that the one centimeter height requirement was adopted so that the logo would be more clearly identifiable and more difficult to counterfeit (50 FR 43177), you stated your opinion that a one centimeter wide trademark would serve these purposes as effectively as a one centimeter high trademark.

Section 541.6(c) reads as follows: "The trademark and the letter "R" required by paragraph (a) of this section must be at least one centimeter high." Any marking of the trademark which is less than one Centimeter high would not comply with this requirement, regardless of how wide the marking is.

However, the stated reasons for promulgating the minimum height requirement for trademarks were to ensure that they would be both clearly legible for investigators and more difficult for thieves to counterfeit. See 50 FR 43177, 43178, October 24, 1985. The agency did not specifically consider the situation where a trademark is wider than it is high. When a trademark is wider than it is high, it would be as clearly legible and as difficult to Counterfeit as a trademark that is higher than it is wide. However, the wider trademark might not comply with the standard while the higher trademark would. It does not appear that any purpose of the theft prevention standard is served by this anomalous result.

Accordingly, we have treated your letter as a petition for rulemaking under 49 CFR Part 552, and it is hereby granted. We will publish a notice of proposed rulemaking on this topic shortly. Please note that, unless and until an amendment becomes effective as a final rule, S541.6(c) requires the trademark on replacement parts to be one centimeter high.

Sincerely,

Erika Z. Jones Chief Counsel

January 7, 1986

Erika Z. Jones, Esq. Chief Counsel National Highway Traffic Safety Administration Washington, D.C. 20590

Re: Regulatory Interpretation 49 CFR Parts 541 and 556 Vehicle Theft Prevention Standard

Dear Ms. Jones:

Porsche has two questions concerning the final rule implementing the Motor Vehicle Theft Enforcement Act of 1984 (49 CFR Parts 541 and 567).

First, may the seventeen digit Vehicle Identification Number marking to be placed on the engine and on the transmission be affixed on two lines rather than on a single line, assuming that the second line is directly below the first? Securing a flat surface on the transmission and on the engine with sufficient length to place a seventeen digit number on a single line is extremely difficult, and Could tend to impair the legibility of the number. Allowing the marking to be placed on two lines, one directly below the other, would afford is substantially greater flexibility and would improve its readability. There is no prohibition we could find in the rules to placing the VIN number on two lines, with the second line directly below the first. (See 49 CFR Sections 541.5 and 567.4(g)).

Second, may Porsche use a trademark which is at least one centimeter wide but less than one centimeter tall on the replacement parts? Replacement parts must be marked with the manufacturer's register trademark. 49 CFR 541.6. However, Porsche has an implementation problem in that its trademark is longer than it is tall.

A trademark is to have a minimum height of one centimeter. 49 CFR 541 6(c). The rationale for the minimum size for the trademark is to insure its visibility and to make it more difficult to counterfeit. As the Statement of Consideration for the final rule provides:

"NHTSA proposed the one cm minimum height for these markings so that the logo would be more clearly identifiable and more difficult to counterfeit."

50 Fed. Reg. 43,177(1985) Porsche completely agrees with NHTSA's two interests but believes they would be equally well met with a trademark that was at least one centimeter in length as with a trademark that was at least one centimeter in height. Such an alternative standard would permit Porsche to position the trademark in the optimal location.

We would appreciate your early response to these issues.

Your truly,

Dean Hansell

cc: Stephen P. Wood, Esq., Associate Chief Counsel for Rule Making

Stephen R. Kratzke Esq., Office of General Counsel

Brian McLaughlin, Office of Market Incentives