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HQ 960547





February 11, 1998

CLA-2 RR:CR:GC 960547 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9505.10.2500

Port Director of Customs
P.O. Box 12455
Pittsburgh, PA 15231

RE: Protest 1104-97-100013: "101 Dalmatians" trinkets incorporating snow domes

Dear Port Director:

This is our decision on Protest 1104-97-100013, concerning your action in classifying and assessing duty on "101 Dalmatians" trinkets under the Harmonized Tariff Schedule of the United States (HTSUS). In preparing this decision we have considered supplemental information provided by counsel for the protestant.

FACTS:

The merchandise consists of four trinkets depicting Disney's "101 Dalmatians". Each incorporates a snow dome. The first has the "Dalmatians" seated in a sleigh. It measures approximately 3« inches long, 2« inches tall and 2 inches wide. The sleigh is bright red and forms the bases. The sides are decorated with red holly berries and green leaves. Atop the sleigh are two "Dalmatians" sitting side-by-side with their front paws over the sled. Behind the two dogs is a large green sack with a gold drawstring. Inside the bag is a snow dome which contains a scene of five Dalmatian puppies surrounded by gifts. The second item depicts a snowman with a black stovepipe hat, carrot nose and black coal eyes. It is approximately 4« inches tall. The middle section of the snowman contains a snow dome with 7 "Dalmatians" puppies frolicking in the snow. The third article portrays what appears to be a gift and incorporates a snow dome. It measures approximately 3¬ inches tall and 2« inches in circumference. Like the sleigh, the base of the article is red and decorated with holly berries and leaves. The snow dome is on top of the base and contains the adult "Dalmatians" surrounded by several puppies. A yellow plastic ribbon is wrapped around the globe from top to bottom forming an upside down "U" shape. The final object is a three dimensional 3 character logogram. The logogram forms the number "101." It measures approximately 5¬ inches long 2 inches tall and 1¬ inches wide. The base is red. A snow globe depicting 4 puppies wrapped in multi-colored lights is in center of the "0" of the "101."

All of the trinkets have a hanging loop at the top of their structure and have the phrase "Disney's 101 Dalmatians" and the year 1996 written on them. Additionally, they are packaged in individual gift boxes. The artwork on the gift packages includes a picture of the article and a gift tag. Red holly berries and green leaves decorated one of the side panels.

The trinkets were sold at fast food restaurants in a Christmas holiday marketing program which began on November 25, 1996, and ended on December 31, 1996. Tray liners, posters, window displays and cash register displays depict all four articles hanging from what appears to be a Christmas tree. A tray liner submitted as evidence states:

Trim your tree with the magic of Disney! McDonalds invites you to bring home the magic of Disney's new live-action movie with a exclusive set of collectible snow domes. They make great gifts and decorations. And there's only on e SPOT to get them-at McDonald's of course. Collect all 4! Just $1.99 each when you buy a DELUXE or other LARGE SANDWICH or Happy Meal . $2.99 each without required purchase. One available each week.

Transcripts of the television and radio commercials state that the articles were markets as "mak[ing] great ornaments and gifts."

Protestant was directed to enter the trinkets under subheading 3926.40.000, HTSUS, as "Other articles of plastics and articles of other materials of headings 3901 to 3914: Statuettes and other ornamental articles." Protestant asserts that the articles are classifiable under subheading 9505.10.2500, HTSUS, as "Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; and parts and accessories thereof: Articles for Christmas festivities and parts and accessories thereof: Christmas ornaments: Other: Other." The entries were made in October and November of 1996 and liquidated in February and March of 1997. A protest was timely filed on April 29, 1997. The headings under consideration are as follows:

3926 Other articles of plastics and articles of other materials of headings 3901 to 3914

9505 Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; and parts and accessories thereof

ISSUE:

Whether "101 Dalmatians" trinkets are properly classified as festive articles in heading 9505, HTSUS, or as plastic statuettes in heading 7013, HTSUS.

LAW AND ANALYSIS:

In Midwest of Cannon Falls, Inc. v. United States, Court No. 92-03-00206, 1996 Ct. Int'l Trade LEXIS 15 (Ct. Intl. Trade, January 18, 1996) and Court No. 96-1271, 96-1279, 1997 U.S. App. LEXIS 21617 (Fed. Cir. August 14, 1997) [hereinafter Midwest], the court addressed the scope of heading 9505, specifically, the class or kind "festive articles." It then applied its conclusions to 29 specific articles to determine whether they were included within the scope of the class. According to the court, all were classifiable as "festive."

Based on a review of the Midwest articles, Customs is of the opinion that the court has included within the scope of the class "festive articles" certain non-utilitarian articles containing representations of an accepted symbol for a recognized holiday. For a detailed listing of those articles, holidays and symbols, see 32 Customs Bulletin 2/3, dated January 21, 1998.

In making a determination on the articles the court gave consideration to the general criteria for classification set forth in United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979 [hereinafter Carborundum]. Therefore, for those articles, holidays and symbols not specifically recognized in Midwest, Customs will apply the general criteria for classification set forth in Carborundum. Those criteria include: general physical characteristics, the expectation of the ultimate purchaser, channels of trade, environment of sale (accompanying accessories, manner of advertisement and display), use in the same manner as merchandise which defines the class, economic practicality of so using the import, and recognition in the trade of this use.

Concerning the 101 Dalmatian snow domes, Customs understands that Midwest recognized water globes (snow domes) as articles which are of the class or kind "festive article." Furthermore, both the court and Customs recognize that articles with "loops" for holding a hook or string to hang an article from a Christmas tree fall within the more narrow class or kind "Christmas ornament." However, a "101 Dalmatians" motif (symbol) is not one which is prima facie associated with Christmas or any other given festivity. Therefore, Customs must apply the Carborundum criteria to determine whether the subject merchandise is sufficiently associated with a recognized holiday to be classifiable as a "festive article" and more specifically as a "Christmas ornament."

In support of the position that the articles fell within the scope of the class "festive articles" and more specifically "Christmas ornament," protestant has provided Customs with a variety of evidence. All of the objects have a hanging loop at the top of their structure and have the phrase "Disney's 101 Dalmatians" and the year 1996 written somewhere on them. This is physical evidence of their principle use as Christmas ornaments. Moreover, they are packaged in individual gift boxes. Their artwork has repeated symbols, namely holly berries and leaves which are some evidence of the article's association to Christmas. Additionally, several have incorporated gifts/gift giving in their presentation and the packaging includes a picture of the article and a gift tag. Furthermore, the objects were sold at fast food restaurants in a holiday marketing program which began on November 25, 1996, and ended on December 31, 1996. Tray liners, posters, window displays and cash register displays depicted all four articles hanging from what appears to be a Christmas tree. Finally, advertizing included a tray liner indicating the articles were to be principally used as a Christmas tree ornament. Based on the information before us, it is our determination that the "101 Dalmatians" trinkets belong to the class "festive article" and more specifically "Christmas ornament." Therefore, they are properly classified in heading 9505, specifically subheading 9505.10.2500, HTSUS, as Christmas ornaments.

HOLDING:

The protest is GRANTED in full. The "101 Dalmatians" Christmas ornaments are classifiable in subheading 9505.10.2500, HTSUS, which provides for Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; and parts and accessories thereof: Articles for Christmas festivities and parts and accessories thereof: Christmas Ornaments: Other: Other.

In accordance with Section 3A (11)(b) of Customs Directive 0993550-065, dated
August 4, 1993, Subject: Revised Protest Directive, this decision, together with the Customs Form 19, should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Ruling Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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