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HQ 962565




January 28, 2000

CLA-2 RR:CR:GC 962565 JGB

CATEGORY: CLASSIFICATION

TARIFF NO.: 3926.40.00; 6913.10.50

Mr. John M. Peterson
Neville, Peterson and Williams
80 Broad Street, 34th Floor
New York, New York 10004-2730

RE: Snowden Holiday Swingset Tableau and Snowden® Trinket Box; Midwest of Cannon Falls, Inc. v. United States

Dear Mr. Peterson:

This is in response to your letter of November 27, 1998, to the Customs National Commodity Specialist Division, New York, on behalf of Target Stores, Division of Dayton-Hudson Corporation, in which you request a ruling, under the Harmonized Tariff Schedule of the United States (HTSUS), on two prospective importations.

Your letter was referred to this office for reply. We regret the delay in providing this response.

FACTS:

The two articles considered in this decision are as follows:

Snowden Holiday Swingset Tableau

This decorative article is made of high-density plastic material, painted red, green, brown, white, grey and black. It consists of a base simulating a snowbank with two framing trees, the upper branches of which are covered by a layer of snow. On the snow or around the trees are a rabbit, a mouse, a raccoon and a cardinal. Attached to the cross limbs of the trees are gold cords that hold swings. On the swings are Raggedy Ann and Andy figures, also of plastic, and Snowden® in the center. Decorating the tree is a red and green wreath on the left trunk. On the snow cover are several miniature swags of green leaves with a red heart in the center, as well as scattered shirt-button sized red and white “peppermint” candy representations..

In structure, the article is essentially a base with two vertical uprights (the trees) and a cross piece (the snow and the limbs) to hold the three swings. The base is about 11½ inches in width by 6½ inches in height. The seated Snowden® figure is about 2½ inches high, while the seated Raggedy Ann and Andy figures are about 2 inches high.

Snowden Holiday Trinket Box

The white porcelain trinket box is also said to be manufactured specifically for the Christmas holiday season. It is painted red, green, white, and black and consists of a white circular container, 2 inches in diameter and about 1 inch high, shaped to simulate a snowbank. It is topped by the Snowden® figure that is about 2 inches tall, resulting in a trinket box with an overall height of 3 inches. The container base is bisected laterally at its center, the two hollowed halves each bound with its own metal ring. The rings are joined by a hinge that facilitates opening and closing the container. At the front of the upper metal ring is a “bow” design that serves as the clasp with which to open the box. In the floor of the container is a slight raised portion in the shape of a heart created by the mold. At its center is a legend in red letters stating, “YOU’RE IN MY HEART.” The upper lid of the container has the Snowden® figure molded into it. The figure, white with two arms and two legs, wearing snowshoes and a red vest, holds a red heart to its chest. It wears a red and green hat with the word “Snowden” on the front band of the hat.

The articles are said to be associated with and will only be displayed and used during the Christmas season. You state that Snowden® is “Target Stores’ trademarked symbol for the Holiday season” and that the Snowden® figure is featured by “Target Stores in Christmas holiday promotion and advertising.” Snowden®, it is stated is a “symbol of the Christmas holiday season” that is “depicted as a snowman, and is depicted in winter attire evoking a Christmas theme.”

ISSUE:

Whether the Snowden Holiday Swingset Tableau and Snowden® Holiday Trinket Box are classified in heading 9505, HTSUS, as festive articles, or elsewhere.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the

HTSUS by offering guidance in understanding the scope of the headings and GRI.

The HTSUS headings under consideration are as follows:

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

Heading 6913 Statuettes and other ornamental ceramic articles;

Heading 9505 Festive, carnival or other entertainment articles, including magic tricks and practical joke articles.

Although the Snowden® Swingset Tableau as an article of plastics is potentially described by both heading 3926 and heading 9505, consideration must be given to relevant section and chapter notes, as well. Note 2(v) to chapter 39, HTSUS, which covers heading 3926, provides that this chapter does not cover articles of chapter 95. Thus, if the Snowden® Swingset Tableau is classifiable under heading 9505, then Note 2(v) to chapter 39 precludes classification under heading 3926 and necessitates classification under chapter 95. Likewise, the Snowden® trinket box is potentially described by both heading 6913 and heading 9505, so consideration must also be given here to relevant section and chapter notes. Note 2(k) to chapter 69, HTSUS, which covers heading 6913, provides that this chapter does not cover articles of chapter 95. Thus, if the Snowden® trinket box is classifiable under heading 9505, then Note 2(k) to chapter 69 precludes classification under heading 6913 and necessitates classification under chapter 95.

In Midwest of Cannon Falls, Inc. v. United States, Slip Op. 96-19 (Ct. Int’l Trade, 1996), aff’d in part, rev’d in part, 122 F.3d 1423, Appeal Nos. 96-1271, 96-1279 (Fed. Cir. 1997) (hereinafter Midwest), the Court addressed the scope of heading 9505, HTSUS, specifically the class or kind of merchandise termed “festive articles,” and provided new guidelines for classification of such goods in the heading. In general, merchandise is classifiable as a festive article in heading 9505, HTSUS, when the article, as a whole:

1. Is not predominately of precious or semiprecious stones, precious metal or metal clad with precious metal;

2. Functions primarily as a decoration or functional item used in celebration of, and for entertainment on, a holiday; and

3. Is associated with or used on a particular holiday.

Based upon a review of the articles subject to the Midwest decision, Customs is
of the opinion that the Court has included within the scope of the class “festive articles,” decorative household articles which are representations of an accepted symbol for a recognized holiday, and utilitarian/functional articles that are three-dimensional representations of an accepted symbol for a recognized holiday. See Customs Bulletin, Volume 32, Numbers 2/3, dated January 21, 1998.

In addition to the criteria listed above, the Midwest court considered 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, with respect to decorative and utilitarian articles related to holidays and symbols not specifically recognized in Midwest or in the Customs Bulletin dated January 21, 1998, Customs will also consider the general criteria set forth in Carborundum to determine whether a particular good belongs to the class or kind of “festive articles.” Those criteria include the general physical characteristics of the article, the expectation of the ultimate purchaser, the channels of trade, the environment of sale (accompanying accessories, manner of advertisement and display), the 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.

In considering the Midwest standards, neither of the articles is predominately of precious or semiprecious stones, precious metal or metal clad with precious metal. There is no clear connection between the swingset or the trinket box and a particular holiday. While it is claimed that the Snowden® figure is used by Target stores to promote their wares during the Christmas holiday season, Customs views the Snowden® figure as an advertising device or device to establish store or brand identity, in a manner similar to the use of a polar bear drinking Coca-Cola. Other examples of this sort of advertising imaginary figure would be the Pillsbury Doughboy, Planter’s Mr. Peanut, Tony the Tiger for Kellogg’s Frosted Flakes, the Michelin tire man, and Speedee Alka-Seltzer.

There is no question that Snowden® is a pleasant or likable character, as presented, and Customs does not dispute that the Snowden® figure has been used in connection with holiday promotions. We have information in the file to show, for example, the Snowden® parade balloon used in a Houston holiday parade. However, we do not regard Snowden®, in the same class as Santa’s elves, for example, as potentially a symbol of a recognized holiday. Moreover, Snowden® is set apart from the ordinary Christmas-related snowman by such features as bearing a name, having two legs (particularly noticeable in the Snowden® in the swingset) and holding a heart (in the case of the Trinket Box Snowden®). See Headquarters Ruling (HQ) 961874, issued March 9, 1999, for an example of “Christmas” snowmen. By contrast, the swingset presented here is undoubtedly winter-related, but it appears to transcend the Christmas holiday, being suitable for the entire winter season. In this sense, it is apt to be a home decoration, but it is not a holiday decoration.

In determining the classification of the swingset tableau, we also consider various Christmas villages and their appurtenances that have been classified in the provision for festive articles. While there were a number of Christmas villages that were classified in heading 9505, prior to the Midwest decision, following the Midwest decision, Carborundum evidence submitted would enable non-traditional villages to be included in the classification. See, e.g., HQ 960996, issued July 23, 1998, to the applicant here, recognizing the “Christmas Magic Mainstreet” as a festive article. By contrast, the instant swingset tableau has only peripheral Christmas connections, namely, the red and green wreath hanging on one of the tree trunks, the candy cane held by the mouse, and the red and green collar on the rabbit, the balance of the scene, by bulk, weight and visual impact suggest only a winter scene. The fact that Raggedy Ann and Andy are predominantly red and green is irrelevant, in that those are their most common colors. See also HQ 962271, issued January 10, 2000.

We regard the porcelain trinket box as decorative; however, we do not see the article as being exclusively of the class of festive articles to be used for either Christmas or Valentine’s Day. Following our position in HQ 961874, issued September 14, 1999, we see the porcelain box as belonging to a class of collectibles that are sold all year long. Similar porcelain boxes with a variety of motifs are regularly advertised for sale in collectibles catalogues as well as in internet-based auction sites. Thus, while we do not dispute the basic statement offered by the importer, there are additional facts that determine the classification. The hinged porcelain box is classified with other collectible porcelain boxes in subheading 6913.10.50, HTSUS, the provision for “Statuettes and other ornamental ceramic articles: Of porcelain or china: Other: Other.”

HOLDING:

The Snowden Holiday Swingset Tableau is classified in heading 3926, HTSUS, specifically in subheading 3926.40, HTSUS, as “Other articles of plastics:Statuettes and other ornamental articles.”

The Snowden® Holiday Trinket Box, is classified in heading 6913, HTSUS, specifically in subheading 6913.10.50, HTSUS, the provision for “Statuettes and other ornamental ceramic articles: Of porcelain or china: Other: Other.”

Sincerely,

John Durant, Director
Commercial Rulings Division


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