Toy Biz, Inc. v. U.S.

• Decision Date: 26 January 2001
• Docket Number: Slip op. 01-9.,No. 96-10-02291.,96-10-02291.
• Citation: 132 F.Supp.2d 17
• Parties: TOY BIZ, INC., Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

Page 17

132 F.Supp.2d 17

TOY BIZ, INC., Plaintiff, v. UNITED STATES, Defendant.

Slip op. 01-9.

No. 96-10-02291.

United States Court of International Trade.

January 26, 2001.

Singer and Singh, Valley Stream, NY, (Sherry L. Singer and Indie K. Singh), for Plaintiff.

Stuart E. Schiffer, Acting Assistant Attorney General, Joseph I. Liebman, Attorney in Charge, International Trade Field Office, Commercial Litigation Branch, Civil Division, United States Department of Justice, Mikki Graves Walser, Attorney, International Trade Field Office, Commercial Litigation Branch, Civil Division, United States Department of Justice, Beth C. Brotman, Office of Assistant Chief Counsel, International Trade Litigation, United States Customs Service, for Defendant, of counsel.

OPINION

RIDGWAY, Judge.

This case concerns the classification of certain X-Men and other Marvel action figures and dolls imported by Plaintiff, Toy Biz, Inc. ("Toy Biz"). The merchandise, imported from China through the ports of Seattle and Los Angles in 1993 and 1994, includes approximately 90 action figures from various Marvel Comics series (including the X-Men, Spider-Man, and the Fabulous Four), as well as a doll sold as "Jumpsie."

The figures at issue in this opinion are the "Steel Mutants" and "Silver Samurai."¹ The Steel Mutants are colorful two-and-three-quarters inch poseable figures made of die-cast metal, generally sold in pairs of two (an X-Men hero coupled with one of the hero's arch-enemies).² Silver Samurai is a poseable five-inch plastic X-Man figure clad in silver metallic armor.

This case has been designated a test case pursuant to USCIT Rule 84, and is before the Court on cross-motions for summary judgment filed under USCIT Rule 56 by Toy Biz and Defendant, the United States ("the Government").

Background

The U.S. Customs Service classified the merchandise at issue under subheading 9502.10.40 of the Harmonized Tariff Schedule of the United States ("HTSUS"),³ as "[d]olls representing only human beings and parts and accessories thereof," dutiable at 12% ad valorem.⁴ Toy Biz contests that classification, contending — for a variety of reasons — that the action figures and the related items packaged with many of them should be classified not as dolls, but instead as toys or toy sets under various subheadings of HTSUS Chapter 9503 (dutiable at 6.8% ad valorem).⁵

Toy Biz's threshold — and primary — contention (disputed by the Government) was that all items other than Jumpsie (that is, all the action figures) instead should be classified under subheading 9503.49.00, as "[t]oys representing animals or non-human creatures (for example, robots and monsters)," because they represent creatures other than human beings.⁶ The parties' cross-motions for summary judgment on that issue were denied in Slip Op. 00-159, ___ CIT ___, 123 F.Supp.2d 646 (2000).

As alternative grounds for summary judgment, Toy Biz here argues that, even if certain of the figures — specifically, the Steel Mutants and Silver Samurai — in fact represent humans, they nevertheless must be classified as toys (or toy sets) because they are the 21st Century equivalent of "tin soldiers and the like" and are therefore specifically excluded from classification as dolls. Memorandum in Support of Plaintiff's Motion for Summary Judgment ("Plaintiff's Memo") at 12-14; Memorandum of Plaintiff in Reply to Defendant's Memorandum in Opposition to Plaintiff's Motion for Summary Judgment and in Opposition to Defendant's Cross-Motion for Summary Judgment ("Plaintiff's Reply") at 17-18. The Government disagrees. Memorandum in Support of Defendant's Motion to Dismiss and In Opposition to Plaintiff's Motion for Summary Judgment and In Support of Defendant's Cross-Motion for Summary Judgment ("Defendant's Memo") at 26-27; Reply Memorandum to Plaintiff's Opposition to Defendant's Cross-Motion for Summary Judgment ("Defendant's Reply") at 17-18.

For the reasons set forth below, Toy Biz's motion for summary judgment on the issue is denied, and the Government's cross-motion is granted.

Jurisdiction and Standard of Review

Jurisdiction is predicated on 28 U.S.C. § 1581(a) (1994). Customs' classification decisions are subject to de novo review pursuant to 28 U.S.C. § 2640 (1994).

Under USCIT Rule 56(c), summary judgment is appropriate when the evidence before the Court "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Int'l Trading Co. v. United States, 24 CIT ___, ___, 110 F.Supp.2d 977, 981 (2000). Summary judgment is a favored procedural device "to secure the just, speedy and inexpensive determination of every action." Celotex, 477 U.S. at 327, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 1); Sweats Fashions, Inc. v. Pannill Knitting Co., 833 F.2d 1560, 1562 (Fed.Cir.1987).

Discussion

Toy Biz rests its argument that the Steel Mutants and Silver Samurai are toys and not dolls on the Explanatory Notes to HTSUS heading 9502 (Dolls), which expressly exclude from the scope of the heading "[t]in soldiers and the like."⁷ Toy Biz further emphasizes that "[t]in soldiers and the like" are expressly included within the scope of HTSUS heading 9503 (Other Toys), per the Explanatory Notes to that heading.⁸ See Plaintiff's Memo at 13; Plaintiff's Reply at 17.

According to Toy Biz, the Steel Mutants are "like" tin soldiers, because they are made of metal, because they are "warriors," and because (at least as to the dueling duos) they are sold in packages of two.⁹ Plaintiff's Memo at 12-13; Plaintiff's Reply at 17-18. Toy Biz contends that Silver Samurai is "like" a tin soldier as well, because it is a warrior dressed in metallic armor. Plaintiff's Memo at 13.

But, as the Government notes, the seminal Hasbro case is dispositive here. See Defendant's Memo at 26-27 and Defendant's Reply at 17-18, relying on Hasbro Indus., Inc. v. United States, 12 CIT 983, 703 F.Supp. 941 (1988), aff'd, 879 F.2d 838 (Fed.Cir.1989).

Hasbro concerned the classification of a number of different three-and-one-half inch plastic G.I. Joe figures, including figures named "First Sergeant," "Heavy Machine Gunner," "Medic," "Counter Intelligence," and "Tracker," as well as their enemies "Cobra Commander" and "Cobra Intelligence Officer," each of which had a distinctive physical appearance and personality profile. See 703 F.Supp. at 942-45. The Court of International Trade there classified the G.I. Joe figures as dolls, rejecting Hasbro's contention that the action figures were "the modern equivalent of toy soldiers":

[I]f indeed some toy soldiers are outside the ambit of "dolls", then it is only that traditional category of toy soldiers which are characterized by a predominant molded stiffness and which are sold and played with in mass quantities.

703 F.Supp. at 946. The Court continued: "[T]he individuality displayed by these importations, [and] the degree of intimate and manipulative play which they invite as a result of their physical characteristics and mode of presentation, indicate[] to the Court that they are nothing at all like traditional toy soldiers." Id.

The Court of Appeals upheld the decision of the Court of International Trade:

Assuming, arguendo, that traditional toy soldiers are treated differently than dolls for tariff purposes, Hasbro's argument is not persuasive.... [T]he individual personality of each of these figures, as evidenced by his biographical file cards and physical characteristics inviting "intimate and manipulative play"... indicates that these figures are not comparable to the identical, immobile faceless toy soldiers of yesteryear that were sold in groups of a dozen or so in bags.

879 F.2d 838, 840-41 (citation omitted).

Even if the case is not controlling, the Hasbro reasoning compels the same result here.¹⁰ Much like the "traditional toy soldiers" discussed in Hasbro, the "[t]in soldiers and the like" referenced in the Explanatory Notes to HTSUS headings 9502 and 9503 are figures such as the essentially identical, immobile, faceless toy soldiers generally sold in quantities which were popular among young boys in this country some years ago. Such figures stand in stark contrast to Silver Samurai and the Steel Mutants at issue here.

Examination of the relevant samples and Toy Biz's 1994 catalog reveals that each of the Steel Mutants, and Silver Samurai, has a different name, a unique "personality," and a distinctive physical appearance. See Toy Biz 1994 Catalog at 2 (Silver Samurai), 12, 13 (Steel Mutants). Indeed, on the back of each blister pack of two Steel Mutants is a brief profile of the X-Men hero/nemesis duo inside.¹¹ Similarly, Silver Samurai is briefly profiled (together with Robot Wolverine) on the back of the package of Assortment No. 49605-II.¹² Moreover, the individual physical characteristics of Silver Samurai and each of the Steel Mutants invite intimate and manipulative play. They are not sold in mass quantities; nor, in the words of the Hasbro trial court, are they "characterized by a predominant molded stiffness." To the contrary, Silver Samurai and the Steel Mutants are poseable—as evidenced by the samples themselves, and as highlighted on the packaging of the figures and in Toy Biz's catalog. See Toy Biz 1994 Catalog at 2 (Silver Samurai is "totally poseable" and "fully poseable"), 12, 13 (Steel Mutants are "poseable diecast metal action figures," capable of "[p]oseable action"). See also, e.g., packaging of Professor X vs. Magneto, Gambit vs. Bishop, and Cyclops vs. Mr. Sinister (all part of Assortment No. 49220) (advertising "Poseable Figures" and "Poseable Action!" on the front of the blister pack, and "Poseable Diecast Action Figures" on the back).

In short, the Steel Mutants and Silver Samurai at issue here...