Allstar Mktg. Grp., LLC v. United States
| Decision Date | 10 February 2017 |
| Docket Number | Court No. 13–00395,Slip Op.17–15 |
| Citation | 211 F.Supp.3d 1319 |
| Parties | ALLSTAR MARKETING GROUP, LLC, Plaintiff, v. UNITED STATES, Defendant. |
| Court | U.S. Court of International Trade |
Joseph M. Spraragen , Robert B. Silverman , and Frank J. Desiderio , Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP, of New York, NY, for Plaintiff.
Hardeep K. Josan , Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of New York, NY, for Defendant. With her on the brief were Benjamin C. Mizer , Principal Deputy Assistant Attorney General, and Amy M. Rubin , Assistant Director. Of counsel on the brief was Chi S. Choy , Office of Assistant Chief Counsel, International Trade Litigation, U.S. Customs and Border Protection of New York, NY.
Before the court are cross-motions for summary judgment. See Pl.'s Mot. for Summ. J., ECF No. 39; Mem. of Law in Supp. of Pl.'s Mot. for Summ. J. ("Pl.'s MSJ"), ECF No. 39–2; Def.'s Cross–Mot. for Summ. J. & Def.'s Mem. of Law in Opp'n to Pl.'s Mot. for Summ. J. & in Supp. of Def.'s Cross–Mot. for Summ. J ("Def.'s XMSJ"), ECF No. 42. Plaintiff Allstar Marketing Group, LLC ("Allstar" or "Plaintiff") contests the denial of protest number 2809–11–1002371 challenging U.S. Customs and Border Protection's ("Customs") liquidation of the subject import, a polyester fleece knit article referred to as a "Snuggie®," under subheading 6114.30.30 of the Harmonized Tariff Schedule of the United States ("HTSUS"),2 as "Other garments, knitted or crocheted: Of man-made fibers: Other," dutiable at 14.9 percent ad valorem . See generally Compl., ECF No. 6; see also Pl.'s MSJ at 8–27; Pl.'s Mem. of Law in Resp. to Def.'s Cross–Mot. for Summ. J. ("Pl.'s Resp.") at 1–18, ECF No. 51.3 Plaintiff contends that Customs should have classified the subject imports under subheading 6301.40.00, HTSUS, as "Blankets," dutiable at 8.5 percent ad valorem , or alternatively, under subheading 6307.90.98, HTSUS, as "Other made up articles," dutiable at 7 percent ad valorem . Pl.'s MSJ at 27–31; Pl.'s Resp. at 18–22. Defendant, United States, contends that Customs correctly classified the subject imports pursuant to subheading 6114.30.30. Def.'s MSJ at 7–18; see also Def.'s Reply Mem. in Further Supp. of Def.'s Cross–Mot. for Summ. J. ("Def.'s Reply") at 2–7, ECF No. 54. Defendant agrees that if the court finds the Snuggie® not classifiable as a garment or blanket, it should be classified under heading 6307. Def.'s XMSJ at 20.
There is no genuine issue of material fact regarding the properties of the subject import that would preclude summary judgment. The sole issue before the court is whether, as a matter of law, the Snuggie® should be classified under heading 6114, 6301, or 6307.4 For the following reasons, the court finds the subject import is properly classified as a blanket under subheading 6301.40.00.
The court's rule regarding summary judgment requires the moving party to show that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." United States Court of International Trade ("USCIT") Rule 56(a). Movants should present material facts as short and concise statements, in numbered paragraphs, and cite to "particular parts of materials in the record" as support. USCIT Rule 56(c)(1)(A) ; see also USCIT Rule 56.3(a) (). In responsive papers, the nonmovant "must include correspondingly numbered paragraphs responding to the numbered paragraphs in the statement of the movant." USCIT Rule 56.3(b). Parties submitted separate statements of undisputed material facts with their respective motions and responses to the opposing party's statements. See Pl.'s Statement of Material Facts not in Dispute ("Pl.'s SOF"), ECF No. 39–1; Def.'s Resp. to Pl.'s Statement of Undisputed Material Facts ("Def.'s Resp. to Pl.'s SOF"), ECF No. 42–2; Def.'s Statement of Undisputed Material Facts in Supp. of its Cross–Mot. for Summ. J. ("Def.'s SOF"), ECF No. 42; Pl.'s Resp. to Def.'s Statement of Undisputed Material Facts ("Pl.'s Resp. to Def.'s SOF"), ECF No. 51–1. Upon review of Parties' facts (and supporting exhibits), the court finds the following undisputed and material facts.5
Customs liquidated Entry Numbers 231–9479092–2 and 231–9480435–0 under tariff classification 6114.30.30, HTSUS, dutiable at 14.9 percent ad valorem , on October 22, 2010 and October 29, 2010, respectively. Summons at 2–3; Compl. ¶ 47; Answer ¶ 47, ECF No. 18; Pl.'s SOF ¶ 7; Def.'s Resp. to Pl.'s SOF ¶ 7. Allstar timely protested, claiming the subject imports should have been liquidated under tariff classification 6301.40.00 or 6307.90.98. Summons at 2; Compl. ¶ 3, Answer ¶ 3.
Allstar is the importer of record of the subject merchandise. Pl.'s SOF ¶ 1; Def.'s Resp. to Pl.'s SOF ¶ 1. "The subject merchandise consists of an adult-sized Snuggie®, designated by Allstar as Item [Numbers] 21065 [ (serial number SN011106) ] and 21495 [ (serial number SN31106) ]."6 Pl.'s SOF ¶ 6; Def.'s Resp. to Pl.'s SOF ¶ 6; Def.'s SOF ¶ 2; Pl.'s Resp. to Def.'s SOF ¶ 2. The Snuggie consists of polyester fleece knit, is made in one size only, and measures 71 inches by 54 inches. Pl.'s SOF ¶¶ 15, 28; Def.'s Resp. to Pl.'s SOF ¶¶ 15, 28; Def.'s SOF ¶ 1; Pl.'s Resp. to Def.'s SOF ¶ 1. It has "sleeves" that are 28.5 inches long. Pl.'s SOF ¶¶ 16, 28; Def.'s Resp. to Pl.'s SOF ¶¶ 16, 28. There is no closure, and it is open in the back. Pl.'s SOF ¶ 28; Def.'s Resp. to Pl.'s SOF ¶ 28.
The Snuggie® was inspired by the "Slanket®" and the "Freedom Blanket," two products already on the market that were marketed as blankets. Pl.'s SOF ¶ 10; Def.'s Resp. to Pl.'s SOF ¶ 10. In discussions with the foreign vendor of the subject imports, and in purchase orders and specifications submitted thereto, Allstar referred to the Snuggie® as a blanket. Pl.'s SOF ¶ 11; Def.'s Resp. to Pl.'s SOF ¶ 11. Commercial invoices in the subject entries described the Snuggie® as a "Snuggie Fleece Blanket" or "Snuggie Fleece Blnkt." Pl.'s SOF ¶ 4; Def.'s Resp. to Pl.'s SOF ¶ 4. Likewise, purchase orders from and invoices to Plaintiff's retail customers describe the Snuggie® as a blanket. Pl.'s SOF ¶ 12; Def.'s Resp. to Pl.'s SOF ¶ 12. Allstar obtained trademark protection from the U.S. Patent and Trademark Office to use the mark "Snuggie[®]" on "fleece blankets and throws." Pl.'s SOF ¶ 14; Def.'s Resp. to Pl.'s SOF ¶ 14.
To produce the Snuggie®, the factory cuts polyester fleece knit into rectangles and hems all four sides using a machine over-locked or "blanket" stitch. Pl.'s SOF ¶ 17; Def.'s Resp. to Pl.'s SOF ¶ 17. Two holes are cut, and "tubes" of the same polyester fleece are sewn onto the holes. Pl.'s SOF ¶ 17; Def.'s Resp. to Pl.'s SOF ¶ 17.7 Inspection reports taken for Plaintiff included the following measurements: "length, width, sleeve length, armhole, cuff, across back shoulder, [and] distance from armhole to edge." Def.'s SOF ¶ 8; Pl.'s Resp. to Def.'s SOF ¶ 8.8
In addition to being the importer of record, Allstar markets and sells the Snuggie®. Pl.'s SOF ¶ 9; Def.'s Resp. to Pl.'s SOF ¶ 9. Allstar markets the Snuggie® in television commercials, print media, and copy printed on the boxes in which the Snuggie® is sold. Pl.'s SOF ¶ 20; Def.'s Resp. to SOF ¶ 20. Retail packaging and television advertising describe the Snuggie® as a blanket with sleeves. Compl., Ex. B, (retail packaging describing the Snuggie® as "The Blanket That Has Sleeves"); Def.'s SOF ¶ 5; Pl.'s Resp. to Def.'s SOF ¶ 5;9 Def.'s Ex. D at 00:22 (DVD copy of television commercial describing the Snuggie® as "The Blanket With Sleeves!"); Notice Of Manual Filing (July 29, 2016) (notice of manual filing of video disc), ECF No. 44; Def.'s SOF ¶ 6; Pl.'s Resp. to Def.'s SOF ¶ 6 ().
The retail packaging states that the Snuggie® enables users to "Keep Hands Free," is made of "Super–Soft Fleece," is "Machine Washable," and is sized "One Size Fits All." Compl., Ex. B. The retail packaging shows users wearing10 the Snuggie® on their front with their arms through the sleeves while reclining or seated on an airplane, couch, bed, and floor, and engaging in activities such as reading, writing, knitting, holding a remote control, using a laptop, holding a baby, and playing backgammon. Compl., Ex. B. It also shows users wearing the Snuggie® outside, while seated, ostensibly cheering a sports team. Compl., Ex. B.
The television commercial displays text informing viewers that the Snuggie®> enables users to use their hands (for example, to read a book), is made of "[u]ltra-soft fleece," has "[o]versized sleeves," is "[o]ne size fits all," and will keep them "[w]arm from head to toe" "[a]nywhere you go," including the outdoors. Def.'s Ex. D at 00:22–1:010. The commercial opens with a woman appearing frustrated with her blanket's apparent inability to provide satisfactory coverage, and shows her using a Snuggie® instead. Def.'s Ex. D at 00:11–00:25. In addition to showing people wearing the Snuggie® while engaging in the same activities as depicted on the retail packaging, the commercial also shows a woman wearing the Snuggie® while standing and pouring coffee in her kitchen. Def.'s Ex. D at 00:51–00:53.
The Snuggie® is sold in the "bedding, housewares, general merchandise, ‘impulse buy,’ or ‘as-seen-on-TV’ departments of retail stores," never in the wearing apparel department. Pl.'s SOF ¶¶ 23–24; Def.'s Resp. to Pl.'s SOF ¶¶ 23–24.11
This case involves two entries of merchandise, consisting of adult sized Snuggies®, imported in ...
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