J. S. Staedtler, Inc. v. United States, C. D. 183

• Decision Date: 19 June 1939
• Docket Number: C. D. 183
• Citation: 2 Cust. Ct. 484
• Parties: J. S. STAEDTLER, INC. <I>v.</I> UNITED STATES.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

2 Cust. Ct. 484

J. S. STAEDTLER, INC.v.

UNITED STATES.

C. D. 183

United States Customs Court, Second Division.

Decided June 19, 1939.

Strauss & Hedges (Howard C. Carter of counsel) for the plaintiff.

Webster J. Oliver, Assistant Attorney General (Richard E. FitzGibbon, special attorney), for the defendant.

Before TILSON, KINCHELOE, and DALLINGER, Judges

DALLINGER, Judge:

These are suits against the United States, arising at the port of New York, brought to recover certain customs duties alleged to have been improperly exacted on particular importations of artists' pencils. Duty was levied thereon at the rate of 45 per centum ad valorem under paragraph 397 of the Tariff Act of 1930 as manufactures of metal not specially provided for. It is claimed that said articles are properly dutiable at the rate of 50 cents per gross and 25 per centum ad valorem under the provision in paragraph 1549 (a) of said act for "pencils stamped with names other than the manufacturers' or the manufacturers' trade name or trade-mark."

The plaintiff offered in evidence the testimony of Raymond J. Urmston, its president. The Government introduced no evidence herein.

The said witness produced a sample representing the articles covered by item 1018 wherever appearing on the invoice, which sample was admitted in evidence as Exhibit 1. He testified that the letter "H" thereon represents the degree of hardness of the lead; that the number 1018 represents the item number of the pencil; that the name "J. S. Staedtler" on said pencil represents the name of the manufacturer; that there is no connection between J. S. Staedtler and J. S. Staedtler, Inc., the plaintiff herein; that the letters thereon "MARS" belong to the manufacturer whereas the word "Lumograph" also appearing thereon is a name which belongs to the plaintiff. As evidence of its claim to such ownership of that word, the plaintiff produced trade-mark registration 298943 which was admitted in evidence as Exhibit 2.

Most of the testimony on cross-examination was admitted by the trial court over the objection of counsel for the plaintiff, whose objections were based on the ground that the question as to whether or not Exhibit 1 was a mechanical pencil was not properly before the court inasmuch as counsel for the Government did not abandon the classification of the pencils as manufactures of metal not specially provided for, made by the collector, and the further fact that no such claim was made in the plaintiff's protest.

On his cross-examination the witness testified that Exhibit 1 was not a metal pencil filled with lead, but a wooden pencil filled with lead; that the body of the pencil was composed of wood; that it was not an automatic pencil; that it was sharpened by protruding the lead which was a separate part; that the lead was inserted into the rear of the pencil and when the desired amount was allowed to protrude the clamp was tightened; and that Exhibit 1 had no mechanical features, the lead merely being held by a metal clamp.

As pointed out in the brief of counsel for the plaintiff filed...