Western Stamping Corporation v. United States

• Decision Date: 06 November 1969
• Docket Number: Customs Appeal No. 5332.
• Citation: 57 CCPA 6,417 F.2d 316
• Parties: WESTERN STAMPING CORPORATION, Appellant, v. The UNITED STATES (Louis Marx & Co., Inc., Party-in-Interest), Appellee.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

57 CCPA 6, 417 F.2d 316 (1969)

WESTERN STAMPING CORPORATION, Appellant, v. The UNITED STATES (Louis Marx & Co., Inc., Party-in-Interest), Appellee.

Customs Appeal No. 5332.

United States Court of Customs and Patent Appeals.

November 6, 1969.

Eugene L. Stewart, Washington, D. C., attorney of record, for appellant.

William D. Ruckelshaus, Asst. Atty. Gen., Andrew P. Vance, Chief, Customs Section, Herbert T. Posner, U. S. Dept. of Justice, Civil Division, Customs Section, for the United States.

Barnes, Richardson & Colburn, New York City, for party in interest. Hadley S. King, New York City, Earl R. Lidstrom, Chicago, Ill., of counsel.

Before RICH, Acting Chief Judge, JONES, Judge, sitting by designation, and ALMOND, BALDWIN and LANE, Judges.

LANE, Judge.

This is an appeal from the judgment and decision of the Customs Court, 61 Cust.Ct. 152, C.D. 3554 (1968), overruling appellant's protest against the classification of merchandise imported by the appellee party-in-interest. The appellant is a competing American manufacturer who instituted the protest under 19 U.S.C. § 1516(b).

The United States and the importer are in agreement that the items should be classified as typewriters under TSUS Item 676.05,¹ duty free. Appellant contends the classification should have been toys under TSUS Item 737.90,² 35% ad val.

The machines are described in the record as being able to write 84 characters, upper and lower case, and having three rows of keys with the letters arranged relative to each other as on a standard typewriter. One witness, an expert typist, said he was able to type 52 words on the machine in one minute. There is evidence that similar items were designed by appellant to sell for under twenty dollars.

The Customs Court overruled the protest on the grounds that the protester had not carried either of the two burdens of proof imposed upon him: to show by a preponderance of the evidence (1) that the items are not classifiable as typewriters; and (2) that the items were properly classifiable as toys. We find no reason to reverse the Customs Court.

It is well known in customs jurisprudence that the two burdens mentioned above are placed upon a protester because of the presumption of correctness which attaches to the collector's classification. See Seagram & Sons v. United States, 30 CCPA 150, 157, C.A.D. 227 (1943); United States v. Gardel Industries, 33 CCPA 118, 121, C.A.D. 325 (1946); Bob Stone Cordage Co. v. United States, 51 CCPA 60, 65, C.A.D. 838 (1964).

To carry the second burden mentioned above the protester was obliged to show that the items in question were toys within the meaning of the Tariff Schedules. In Schedule 7, Part 5, Subpart E, headnote 2, we find the following definition: "For purposes of the tariff schedule, a `toy' is any article chiefly used for amusement of children or adults." (Emphasis in original.) The protester's burden, therefore, was to show that the chief use of the items in question was amusement. This he attempted to do by introducing evidence that the items were unsuitable for office use, that they were unsuitable for formal instruction in typewriting, that the principal owners of similar items of the appellant were children, and that the only wholesale purchasers of these similar items were toy buyers. The appellee in interest introduced in evidence a "Petite Typewriter" with carrying case and instructions, sold by the appellant. The defense also introduced the instructions accompanying one of the imported typewriters which had been introduced in evidence by appellant.

In weighing the evidence the Customs Court noted that "plaintiff's own brochure * * * states: `youngsters can do homework, learn spelling, improve letter writing and neatness,' none of which is deemed by the court as constituting amusement." The court pointed out that while the evidence may have shown the chief users to be children, it did not show the chief use to be amusement, as required by the schedule.

Chief use is a question of fact. L. Tobert Co., Inc. v. United States, 41 CCPA 161, 164, C.A.D. 544 (1953). This court will not reverse the lower court on a question of fact except where the findings are without evidence to support them, or are clearly contrary to the weight of the evidence. United States v. F. W. Myers & Co., 45 CCPA 48, 52, C.A.D. 671 (1958); United States v. Charles Garcia & Co., 48 CCPA 140, 143, C.A.D. 780 (1961). In this case both a presumption and evidence operate to support the decision of the Customs Court, and we cannot say that the decision below was clearly contrary to the weight of the evidence. There was no evidence directly showing that the chief use of the imported merchandise, or of similar items, was amusement. The noncommercial uses by children could well be educational, even though the items are sold by toy dealers or in toy departments. We therefore must affirm the Customs Court's holding that a chief use of amusement was not shown.

Since the appellant's case failed on the second burden, we need not consider the issue of whether the items in question were typewriters.

The judgment is affirmed.

Affirmed.

MARVIN JONES, Senior Judge (dissenting).

I believe that the appellant successfully carried the two burdens of proof customs jurisprudence imposes on protesters.

Initially, the appellant proved by a preponderance of the evidence that the items in question are not classifiable as typewriters. The commercial meaning, not the common dictionary definition, of the word "typewriter" controls in this case. It is a fundamental principle of customs law that commercial meaning will be followed if it differs from the common definition and if its use is well established in the trade. Cadwalader v. Zeh, 151 U.S. 171, 176, 14 S.Ct. 288, 38 L.Ed. 115 (1894). It must be shown that the commercial meaning is definite, uniform, and general. Maddock v. Magone, 152 U.S. 368, 371, 14 S.Ct. 588, 38 L.Ed. 482 (1894). The party relying on the commercial meaning is obligated to offer evidence in order to meet these requirements. United States v. Simon Saw & Steel Co., 51 CCPA 33, 38, C.A.D. 834 (1964).

The appellant met the obligation. Two of his witnesses testified as to the commercial meaning of the word "typewriter." Raymond Haney, Vice President for Product Planning of the Smith-Corona Marchant Division of the SCM Corporation and Chairman of the American Standards Association Sub-Committee on Typewriters, testified that he had assisted in the drafting of standards for typewriter keyboards. These standards call for 42 keys situated on four rows with two shift levels, i. e., an upper and lower case. While the standards are not compulsory, all typewriters have come to comply with them.

Gale Mead, who was involved in the wholesale and retail distribution of office machinery as President of Mead-Columbia, Inc. and Gale Mead Wholesale, Inc. and who has formerly held several offices, including president, of the National Office Machine Dealers Association, testified that a commercial typewriter can take a block of ten pieces of typing paper.

These witnesses and others stated that the imported article, designated by the Louis Marx & Co. as "Marxwriter 200" did not come within the commercial meaning of the word typewriter. Witness Haney testified that it did not meet the keyboard standards as it had only 30 keys on three rows with three shift levels. Witness Mead concluded that it could not be "* * * commercially used as a typewriter, in the general concept of a typewriter. It doesn't have the necessary equipment; it won't handle the abundance of different type paper that a typewriter is supposed to in normal use. The keyboard is not standard all the way through; and basically, lack of equipment."

When asked what the imported article was in his opinion, Morris C. Fuller, Jr., Vice President for sales of SCM Corporation, answered, "I would say it is a toy or replica of a typewriter. To nearly approach an office keyboard, it doesn't approach it at all." He further answered that it did not correspond to his understanding of the meaning of the word "typewriter" as that word is used in the trade and commerce of the United States.

Dr. Alan C. Lloyd was the Editor-in-Chief of all McGraw Hill Book Co. publications on typewriting. He was also a former typewriting teacher and editor of shorthand and typewriting magazines. He had published 52 text books and articles on typewriting. Over 50 percent of the people being taught typewriting at the time of trial were using his works. This expert testified that the imported item was unacceptable as a typewriter. He stated that he could not give instructions on it, since it had no standard keyboard, no margin sets, no margin release, no device for properly and efficiently straightening the paper and because the spacing is irregular. Ordinarily on a regular commercial typewriter Dr. Lloyd could type 85-90 words a minute. On the item in question he could at best achieve slightly more than one-half his normal speed.

The imported article probably comes within the broad, all-inclusive...