Mattel, Inc. v. United States, C.D. 3531

• Decision Date: 08 August 1968
• Docket Number: Protest No. 66/69722-82335.,C.D. 3531
• Citation: 61 Cust. Ct. 75,287 F. Supp. 999
• Parties: MATTEL, INC. v. UNITED STATES.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

287 F. Supp. 999

61 Cust. Ct. 75

MATTEL, INC. v. UNITED STATES.

C.D. 3531; Protest Nos. 66/69722-82335.

United States Customs Court, First Division.

August 8, 1968.

Barnes, Richardson & Colburn, New York City (Joseph Schwartz and Hadley S. King, New York City, of counsel); R. Kenton Musgrave, Hawthorne, Cal., associate counsel; for plaintiff.

Edwin L. Weisl, Jr., Asst. Atty. Gen. (Arthur E. Schwimmer and Andrew P. Vance, New York City, trial attorneys), for defendant.

Before WATSON and MALETZ, Judges.

MALETZ, Judge:

This case involves the proper classification of wigs for dolls. The wigs were classified by the collector under item 737.20 of the Tariff Schedules of the United States as parts of dolls, and assessed with duty at 35 percent ad valorem. Plaintiff claims that the merchandise is properly classifiable under the eo nomine provision for "wigs" in item 790.70, with duty at 14 percent ad valorem.

At the trial, the government abandoned and repudiated the collector's classification and thus relinquished its presumption of correctness in this case. See e. g., Smith & Nichols (Inc). v. United States, 18 CCPA 16, 18, T.D. 43974 (1930); International Vitamin Corp. v. United States, 19 Cust.Ct. 76, 77, C.D. 1071 (1947). The government now claims a new classification for the wigs under item 737.90 as "toys, * * not specially provided for * * * other," carrying a duty rate of 35 percent ad valorem.

Quoted below are the pertinent statutory provisions:

                            Tariff Schedules of the United States
                Item                           Articles                        Rates of Duty
                                                                                     1
                737.20        Dolls, and parts of dolls including doll
                                clothing ...................................... 35% ad val
                                Emphasis supplied
                                  *   *   *   *   *   *
                              Toys, and parts of toys, not specially provided
                                for
                                  *   *   *   *   *   *
                737.90        Other ........................................... 35% ad val
                                  *   *   *   *   *   *
                790.70        Wigs, toupees, chignons, and similar articles
                                ............................................... 14% ad val
                      Schedule 7, Part 5
                      Subpart E—Models; Dolls, Toys, Tricks, Party Favors
                Subpart E headnotes:
                  1. The articles described in the provisions of this subpart (except
                parts) shall be classified in such provisions, whether or not such articles
                are more specifically provided for elsewhere in the tariff schedules
                * * *. Emphasis supplied.
                  2. For the purposes of the tariff schedules, a "toy" is any article
                chiefly used for the amusement of children or adults.
                           General Headnotes and Rules of Interpretation
                                10. General Interpretative Rules.
                     *   *   *   *   *   *   *   *   *   *
                    (ij) a provision for "parts" of an article covers a product solely
                  or chiefly used as a part of such article, but does not prevail over a
                  specific provision for such part. Emphasis supplied.
                

The record consists of a stipulation, the testimony of seven witnesses for the plaintiff, four witnesses for the government, ten exhibits for the plaintiff and four exhibits for the government. The stipulation was as follows:

(1) Defendant concedes that the articles described as wigs on the invoices are, in fact, wigs, and are described in item 790.70.

(2) Plaintiff concedes that said articles are chiefly used for the amusement of children or adults, and were chiefly so used on and immediately prior to July 29, 1964, which was the date of entry. Both parties reserve the right to offer testimony as to the manner in which the articles are used in the Los Angeles area. Emphasis supplied.

(3) The manner in which said articles are used in the Los Angeles area is the same as the manner in which they are used throughout the United States, and is the same as the manner in which they were used on and immediately prior to July 29, 1964.

The imported wigs being concededly "wigs" of the type specifically described in item 790.70, if the record establishes that these wigs are "parts" of dolls, then General Interpretative Rule 10(ij) and the headnotes to Subpart E require that the specific provision for wigs prevail. Hence, the single issue is whether the wigs in this case are "parts of dolls."¹ If they are, then (as defendant concedes) plaintiff's claim is correct; if they are not, defendant prevails.

We now consider the facts of the case as shown by the record. In 1959, plaintiff first introduced on the market a doll known as the basic "Barbie" doll, which proved to be immensely popular with little girls. As an officer of plaintiff put it, little girls "identify * * * the "Barbie" doll with a quality image. They identify it with * * * almost a way of life." The basic play pattern with the doll involves the selection and change of her clothing by the little girl playing with her. It may be added that the "Barbie" doll has fiber hair that has been permanently rooted into her head by machine, which effectively prevents the color and style of the hair from being altered. Because of that characteristic, changing hair style and color is not a part of the play function with the basic "Barbie" doll.

In late 1963, after the basic "Barbie" had been on the market for some 4 years, plaintiff introduced a significant variation called "Fashion Queen Barbie" which was "a very deluxe Barbie doll to sell at a higher price than the regular doll, including as part of the play pattern, the ability to change the hair color and hair style * * *." That "ability to change the hair color and hair style" was accomplished through the design and development of a special sculptured doll head and the wigs which are the subject of this case.

In the design and development of the special sculptured head and wigs for "Fashion Queen Barbie," some 6,000 man-hours were expended (by sculptors, engineers, chemists, hair stylists, and others) during a period beginning in February 1962 and extending into 1963. The resulting product (head and wigs) was patented. The basic concept and objectives of the invention (which were testified to by the holder of the patent) are summarized in the patent application which was filed August 17, 1962, as follows:

The concept of a wig or replaceable hairdo for a doll is not new, but the articles found in the prior art have been quite unsatisfactory from several points of view. Often these hairdos are quite unrealistic. Further, they often are not readily removable, or when removable, tend to loosen and fall off while the doll is being handled. These deficiencies appear to stem generally from the unstable nature of the wigs or headpieces which have been used prior to this time. Such unstable base construction results in ununiform shape and appearance. Further, the unstable base results in a headpiece which is not securely fastened to the doll and which therefore causes the headpiece to loosen or come off easily.

Accordingly, it is a prime object of the present invention to provide a novel and improved doll head and headpiece construction. More particularly, it is an object of this invention to provide a construction of doll head and removable headpiece which will hold the headpiece firmly upon the head of the doll and yet permit it to be readily removed and replaced by another headpiece.

It is a more specific object of this invention to provide a shape-retaining yet flexible wig or headpiece construction which will provide a more satisfactory replaceable hairdo.

It is a further object of this invention to provide improved connector means for releasably maintaining the headpiece or wig for a doll firmly but releasably upon the head of the doll.

It is still another object of the invention to provide a doll head construction designed to appear normal and complete without a headpiece, but adapted to cooperate with the headpiece to firmly but releasably retain the headpiece upon the doll's head.

It is also an object of this invention to provide such a construction wherein the visual design of the head itself does not interfere with the new visual impression created when the headpiece is mounted upon the head.²

The relationship between the patented special "Fashion Queen Barbie" doll head and the patented wigs in this case was further detailed by the inventor at trial. He testified that the head was designed to work in conjunction with the wigs so that the children could accurately place the wigs on the head, and so that the wigs would remain securely affixed to the head in the play that the children provided for them. The head, he indicated, was sculptured to provide an undercut on the doll's head to hold the wigs in place, and to orient the wigs so that when the hair style and color were changed by the child playing with the doll, the wigs would snap into place in a blue ridge around the edge of the head that resembled a bandeau. The rest of the sculpturing around the head, he added, was painted brown to simulate hair and thus to prevent "the doll from looking shockingly bald when the hair styles * * * were being changed." He further testified that the wigs are all of the same size; that they are designed and sold to work in conjunction with the head; and that the wigs are not complete articles in themselves and are not sold as a complete article, but rather are designed to be sold in conjunction with the head.

The witness pointed out that initially the wigs were designed to be sold with the very deluxe "Barbie" doll, with that model doll coming with the special sculptured head "and the wigs to go with it." He stated that the snapping into place of the wig upon the special head insures that the "hair is properly located and attractive." "The Barbie doll," he added, "is noted for being a very beautiful doll and the arrangement of the hair is an important element of the beauty of the doll. The wig is...