Ero Industries, Inc. v. U.S., SLIP OP. 00-138.

• Decision Date: 19 October 2000
• Docket Number: No. 98-01-00053.,SLIP OP. 00-138.,98-01-00053.
• Citation: 118 F.Supp.2d 1356
• Parties: ERO INDUSTRIES, INC., Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

118 F.Supp.2d 1356

ERO INDUSTRIES, INC., Plaintiff, v. UNITED STATES, Defendant.

SLIP OP. 00-138.

No. 98-01-00053.

United States Court of International Trade.

October 19, 2000.

Sonnenberg & Anderson (Paul S. Anderson and M. Jason Cunningham) for plaintiff.

David W. Ogden, Acting Assistant Attorney General; Joseph I. Liebman, Attorney in Charge, International Trade Field Office, Commercial Litigation Branch, Civil Division, United States Department of Justice; Sheryl A. French, Office of Assistant Chief Counsel, International Trade Litigation, United States Customs Service, of counsel, for defendant.

OPINION AND ORDER

WATSON, Senior Judge.

INTRODUCTION

At issue is the proper classification under the Harmonized Tariff Schedule of the United States ("HTSUS") for certain merchandise imported by plaintiff from China which is described in the commercial invoices and other entry documents as "playhouses," "play or slumber tents," and "vehicle tents" (collectively, the "imports" or the "subject merchandise"). The subject merchandise comprises tent-like articles that include a vinyl shell having colorfully imprinted on the exterior licensed copyrighted and trademarked graphics depicting various fictional children's characters and images and a supporting framework of interconnected elastic-corded PVC poles and connectors.

The imports were classified and assessed with duties by the United States Customs Service ("Customs") under either subheading 3926.90.98, HTSUS, as "[o]ther articles of plastics," or subheading 3924.90.55, HTSUS, as "[t]ableware, kitchenware, other household articles and toilet articles, of plastics: Other: Other."¹ Plaintiff claims that the imports are properly classifiable as toys under Chapter 95, subheading 9503.90.00, HTSUS, and hence are duty free.

This classification dispute falls within the court's jurisdiction under 28 U.S.C. § 1581(a). The parties have cross-moved for summary judgment pursuant to USCIT Rule 56 asserting there are no genuine issues of material fact for trial. For the reasons set forth hereinafter, the court finds there are no genuine issues as to any material fact and that the classification dispute may be resolved by summary judgment pursuant to Rule 56.

THE RECORD

For evidentiary support of their respective summary judgment motions, the parties have submitted the deposition testimony of certain members of Ero's managerial staff: Lizbeth Scott, (taken on January 18, 2000), Debra S. Silberman (taken on January 19, 2000), and Valerie L. Schreck (taken on January 19, 2000); documentary and physical exhibits; responses to interrogatories and requests for production of documents; an affidavit of Ms. Silberman; United States Customs Headquarters Ruling Letters; a United States Customs Service internal memorandum of September 19, 1996; the pleadings. The court also has considered the statements of disputed and undisputed material facts filed by the parties pursuant to Rule 56(h) (formerly Rule 56(i)).

UNDISPUTED MATERIAL FACTS

Each imported article comprises a relatively thin (0.15 millimeters in thickness) polyvinyl chloride fabric (plastic) shell imprinted with various colorful licensed graphics depicting children's fantasy characters and images (more specifically described below), which fabric is, in a tent-like fashion, draped over and assembled with 1.3 millimeters diameter PVC (plastic) corded poles and polyethylene (plastic) connectors. The imports present several different tent-like structural configurations, characterized by the parties as: "playhouses," "play or slumber tents," and "vehicle tents."

The "playhouse," i.e., "Barbie Play House" (see Addendum I), resembles the shape or configuration of a conventional house having a rectangular base and a gable (angled) type roof. (Schreck Dep. Tr. at 18-19.) The playhouse typically measures 40 inches in length, 30 inches in width, and 44 inches in height, and therefore, could be characterized as a miniature playhouse.

The "slumber tent" (or "play tent"), i.e., Disney's "Pocahontas Slumber Play Tent" (see Addendum II), is domed-shaped (resembling the upper portion of a covered wagon) (Scott Dep. Tr. at 35; Schreck Dep. Tr. at 19). The only significance of the term "slumber" is that it indicated to Ero's retailers that the merchandise was a Slumber Shoppe product (Scott Dep. Tr. at 42; Schreck Dep. Tr. at 41). "Slumber tents" and "play tents" refer to the same articles (Silberman Dep. Tr. at 25). These articles have a standard height of 33 inches, a rectangular base that is 45 inches long and 33 inches wide. The size of these imports accommodates simultaneously only one or two small children (Schreck Dep. Tr. at 44).

A "vehicle tent" simulates and presents a theme of a particular vehicle, such as Disney's Toy Story Play Space Ship ("Buzz Lightyear") (see Addendum III), (a car, a fire truck, Batman's vehicle, GI Joe's vehicle, etc.). These imports have variable dimensions, depending upon the vehicles' theme (Scott Dep. Tr. at 36, 40; Schreck Dep. Tr. at 20). To enhance the amusement or play value of the vehicles for children, they "are a little more elaborate [than the playhouses and slumber tents] and contain a number of play features that carry out the theme of the tent, including a steering wheel and working lights or horn." (See Customs' Memorandum of September 19, 1996, p. 2.) The steering wheels are "three dimensional plastic toy steering wheels that did not function [and which were] there for pretend play," viz., the child pretends to maneuver a vehicle (Scott Dep. Tr. at 76). Deponent Scott testified that some vehicles, like the Batman play vehicle and Jurassic Park play vehicle, had steering wheels connected to the framework of the articles (Scott Dep. Tr. at 76).²

When children "play" with a product, "they are amusing themselves in any fashion while interacting with that product." (Scott Dep. Tr. at 79). With respect to the imports, "play" would be "active play" or "fantasy play." "Active play" with the imports might involve the use of other articles, like a tea set, a car, or other toys, while "fantasy play" would require only the use of the child's imagination to fantasize that the import is a fort, a car, a castle, or doll house (Schreck Dep. Tr. at 45-46). The subject merchandise is "geared toward children three to eight years old" (Scott Dep. Tr. at 34; Silberman Dep. Tr. at 45); toddlers would simply climb in and out of the articles or sit inside (Silberman Dep. Tr. at 46). Since plaintiff considers the imports as "play products," no attempt was made to prolong their useful life by using a textile fabric shell which would be more durable than plastic material that has less resistance to ripping (Scott Dep. Tr. at 46). The intended use of the subject merchandise is to facilitate the play activities of children, both inside and outside the products, and not camping or any extended outdoor use (Schreck Dep. Tr. at 45-46; Scott Dep. Tr., at 45-48, 54-56, 79-80).

The imports are designed for use in the home, but to a limited extent they may be used in the backyard. See Memo of National Import Specialist Alice Wong of September 19, 1996 (Pltf's App. I, Exh. VI, at 4, 5). The imports are completely unsuitable for camping or other extended outdoor use, as they are not sufficiently durable or constructed for protection from the elements. They have an opening or slit at one end (the "door"), but no mechanism or device to seal the opening from insects or the elements; another opening in the shell, the so-called "window," lacks any sealing device or mechanism for closing the opening for protection against the weather. See Customs Rulings HQ 959629 and HQ 961060. Tents constructed for camping or other extended outdoor use are typically constructed of a durable textile fabric rather than light weight plastic. Although, the plastic fabric used in the shell of the imports meets flammability standards for tentage, plaintiff offers a "different kind of product than a camping tent." (Scott Dep. Tr. at 14). The imports are neither advertised nor recommended for extended outdoor usage, for shelter, or for camping (Schreck Dep. Tr. at 54-55). Quite the contrary, in its packaging, plaintiff cautions users: "This playhouse is not intended for camping usage or extended outdoor use" (Silberman Dep. Tr. at 40). Moreover, the imports were not designed to be secured to the ground with stakes, which obviously puts the light weight vinyl shells and plastic supporting poles in serious risk for instability under even moderate wind conditions.

The graphics printed on the exterior surface of the shells serve to create imagery and a theme in order to promote and facilitate children's play activities. Thus, plaintiff licensed for display on the imports such copyrighted and trademarked children's images as Mickey Mouse, Sesame Street, Winnie the Pooh, Lion King, Barbie, Rugrats, Blues Clues, Teletubbies, Dalmatians, Buzz Lightyear, and Disney's Pocahontas (Schreck Dep. Tr. at 24; Silberman Dep. Tr. at 30; Pltf's Statement of Undisputed Material Facts, par. 22). Since children using the imports extensively play with them outside as well as inside the articles, the children's graphic displays and decorations are focused on the exterior surface of the shells to provide play themes and to stimulate a child's imagery and play activities. (Scott Dep. Tr. at 46, 79; Silberman Dep. Tr. at 46). When playing with the imported articles, children integrate the imagery created by the graphics printed on the shells with props such as dolls or other things to play out a scene (Scott Dep. Tr. at 79-80). However, in addition to the children's amusement generated by imaginative play activities stimulated by the graphics, the enclosure by the imports itself affords amusement for young children. Thus, children play hide-and-seek or pretend to be in a "secret place," and if they so wished, children could utilize the imports for napping. (Schreck Dep....