Hasbro Industries, Inc. v. U.S.

• Decision Date: 12 July 1989
• Docket Number: No. 89-1202,89-1202
• Citation: 879 F.2d 838
• Parties: HASBRO INDUSTRIES, INC., Plaintiff-Appellant, v. The UNITED STATES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

Page 838

879 F.2d 838

11 ITRD 1344

HASBRO INDUSTRIES, INC., Plaintiff-Appellant, v. The UNITED STATES, Defendant-Appellee.

No. 89-1202.

United States Court of Appeals Federal Circuit.

July 12, 1989.

Peter Jay Baskin, of Sharretts, Paley, Carter & Blauvelt, New York City, for plaintiff-appellant. With him on the brief were M. Barry Levy and Ned H. Marshak, of Sharretts, Paley, Carter & Blauvelt, New York City.

Saul Davis, of the Commercial Litigation Branch, Dept. of Justice, New York City, argued for defendant-appellee. With him on the brief were John R. Bolton, Asst. Atty. Gen., David M. Cohen, Director and Joseph I. Liebman, Atty. in Charge.

Before NIES, MAYER and MICHEL, Circuit Judges.

MICHEL, Circuit Judge.

Hasbro Industries, Inc. appeals the decision of the Court of International Trade, 703 F.Supp. 941 (Ct. Int'l Trade 1988), which determined that "G.I. Joe Action Figures" are within the common meaning of "dolls" and were properly classified as such under Item 737.24 of the Tariff Schedules of the United States (TSUS). We affirm.

Background

The United States Customs Service classified "G.I. Joe Action Figures" imported from Hong Kong during 1982 and 1983 as "other dolls" under Item 737.24 of the TSUS. Under this classification, depending on the date of entry, various rates of duty applied. Hasbro argues that these toy figures are excepted from duty because they are properly classifiable as "Toy figures of animate objects (except dolls): Not having a spring mechanism: Not stuffed: Other" under Item A737.40, TSUS, and thus free of duty pursuant to General Headnote 3(c), TSUS. Hasbro contends that G.I. Joe is nothing more than a modern version of a traditional toy soldier.

G.I. Joe was originally introduced in 1964 as an 11 1/2 inch figure. In 1976, Hasbro reduced G.I. Joe to 8 1/2 inches and soon thereafter removed G.I. Joe from the market. When G.I. Joe was reintroduced in 1982, his Alice in Wonderland shrinkage had continued until he was only 3 1/2 inches.

The articles in dispute are fully described in the opinion below:

All the figures are made of plastic, are approximately 3 1/2 inches tall, and have the appearance of human beings dressed and equipped in a manner associated with actual or fictional warfare. They are noticeably lifelike and constructed in a manner which permits an impressive range of movement. The head turns from side to side, the arms are jointed at the shoulder and elbow and also have a rotational joint above the elbow and a rotational joint capacity in the shoulder. They can turn at the waist and also bend slightly in all directions from the waist. The legs have a wide range of movement at the hip and sufficient bending action in the knees to allow the figure to kneel or sit. The articulated joints maintain the position in which they are placed by manipulation. (Emphasis added.)

703 F.Supp. at 942.

Each figure is packaged singly in a large plastic blister mounted on a large card which contains specific biographical information for each figure. For example, First Sergeant, Code Name: Duke, has the following personnel card:

File Name: Hauser, Conrad S.

SN: RA213757793

Primary Military Specialty: Airborne Infantryman

Secondary Military Specialty: Artillery, Small-arms armorer

Birthplace: St. Louis, MO Grade: E-8 (Master Sergeant)

Duke was fluent in French, German, and English when he enlisted in 1967. Graduated top of his class at airborne school, Fort Benning. Opted for U.S. Army Special Language School. Specialized in Statement after declining commission. "They tell me that an officer's job is to impel others to take the risks--so that the officer survives to take the blame in the event of total catastrophe. With all due respect, sir ... if that's what an officer does, I don't want any part of it."

Han Chinese and South East Asian dialects. Went Special Forces in 1969. Worked with tribesmen in the boonies of South Vietnam. Ran four different Special Forces schools. Turned down a commission in 1971. Commands by winning respect. Current assignment: Acting First Sergeant, G.I. Joe team.

In addition, each figure comes with its own specialized accessories. For example, First Sergeant comes with plastic pieces representing binoculars, a helmet, an assault pack, and an M-32 sub-machine gun.

Using lexicographic authorities and prior case law to establish the common meaning of the term "doll," the Court of International Trade determined that G.I. Joe action figures fell within that tariff term.

OPINION

Although the common meaning of a tariff term is a question of law, Childcraft Education Corp. v. United States, 742 F.2d 1413, 1414 (Fed.Cir.1984) and therefore subject to de novo review, the determination whether a particular item fits within that meaning is a question of fact, Brookside Veneers, Ltd. v. United States, 847 F.2d 786, 788 (Fed.Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 369, 102 L.Ed.2d 358 (1988), subject to the clearly erroneous standard of review. Id. at 790-91. We note that "[i]t is incumbent upon the importer in a case such as this to overcome the presumption of correctness which attaches to a classification by the Customs Service, and the importer has the burden of proving that the classification is incorrect, though the importer need not always prove that its own proposed...