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HQ 964723




April 20, 2001

CLA2 RR:CR:TE 964723 SG

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.70.0000

Alan Kamnitz, Esq.
Sharretts, Paley, Carter & Blauvelt, P.C. 67 Broad Street
New York, N.Y. 10004

RE: Classification of Stuffed Pillow-like Articles in Form of Variety of Animals Incorporating Games: Game Buddies: Pillow Buddies®: Pillows: Toys: Toy Sets: Games

Dear Mr. Kamnitz:

This is in response to the letter of April 13, 1999, wherein David Stepp, Esq. of White & Case requested, on behest of Crown Crafts, Inc., that we issue a binding classification ruling on the “Duncan Bear” Game Buddies and five other styles of stuffed articles in the form of a variety of animals that will incorporate various games. The request was resubmitted by you on June 19, 1999. We have been advised that the subject Game Buddies are items included within the Pillow Buddies® line. It is our understanding that these articles will be imported from Taiwan or China. It is your client’s position that the proper classification of these articles is as other toys under subheading 9503.90.0030, HTSUSA, or as toy sets under subheading 9503.70.0030, HTSUSA

FACTS:

The samples are pillow-like articles designed and shaped to resemble various animals. We are advised that Crown Crafts imports the “Duncan Bear” Game Buddies as well as “Tiger Toss”, “Charlie Checkers”, “Hit the Banana”, and the “Big Catch” Game Buddies. A sample of the “Duncan Bear” Game Buddies was provided, as was a brochure issued by Crown Crafts in the Fall of 1997, in which pictures of each of the other five Game Buddies is shown. Each Game Buddies differs depending on the animal and game that it represents. However all possess the following characteristics and features, as appropriate: The outer surfaces are composed of 100% polyester fleece or a blend of polyester, acrylic, cotton, and/or nylon. The fabric is stuffed with 100% polyester fiberfill or a similar type of soft filling material giving the articles a soft, resilient feel. They generally measure approximately 27 inches long (excluding tails) by 16 inches at it widest point and 3 inches thick. The construction of these figures includes stuffed heads with eyes, noses, snouts and ears, some of which are three-dimensional, although most are just overlaid material in contrasting colors; a stuffed, fairly block-shaped torso onto which appendages, e.g., heads, tails, scales are attached; flat and plain undersides; and arm, leg, and paw appendages which are stuffed but are configured in such a way as to form, with the torso, a rectangle shaped article.

Duncan Bear is a stuffed depiction of a bear that incorporates a ball game. The bear has small velcro® patches on its out-stretched paws to which a netted hoop is attached. Packaged with the bear are two foam balls approximately three inches in diameter. The back of the head of the bear contains a slot where these balls can be contained when not in use. It is stated that children play with the bear by attempting to throw the balls through the hoop. The hoop unattaches from the bear, and it too can be stored in the bear’s pouch.

Tiger Toss is a stuffed depiction of a tiger. Sewn into the belly of the tiger are fabric stars, each of which has designations of 25, 50, or 100 points. Packaged with the tiger are three balls that are approximately three inches in diameter and are made of material that will stick to the fabric stars. It is our understanding that children play with the tiger by throwing the balls at the animal and attempting to hit the stars for as many points as possible.

Charlie Checkers is a stuffed depiction of a turtle that incorporates the game of checkers. Imprinted on the fabric outer “shell” of the turtle’s back is a checkerboard. Children may pay checkers on the checkerboard with red and black fabric pieces that are packaged with the turtle. The fabric pieces are made of velcro® and stick to the checkerboard squares.

Hit the Banana is a stuffed depiction of a gorilla. Sewn onto the gorilla’s chest are fabric bananas in groups of one, two, and three.. Packaged with the stuffed gorilla are foam balls approximately three inches in diameter that stick to the banana on contact. Children throw the balls at the gorilla’s chest and attempt to hit as many bananas as possible.

The Big Catch is a stuffed depiction of a bear with a large baseball glove as one of its paws. Accompanying the bear are foam balls approximately three inches in diameter that stick to the glove material upon contact. Children throw the balls to the bear so that the bear can “catch” the balls in its glove.

It is claimed that all the Game Buddies can be played with as any other stuffed animal because the toy game aspects of the Game Buddies do not diminish the soft and cuddly characteristics of the animals they represent.

ISSUE:

Whether the proper classification of Game Buddies Pillow Buddies® representing animals with toy game aspects is in heading 6307, HTSUS, as other made up textile articles, in heading 9503, HTSUS, as stuffed or other toys, or toy sets, or in heading 9404, HTSUS, as other pillows?

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI's). The systematic detail of the harmonized system is such that virtually all goods are classified by application of GRI 1, that is, 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's may then be applied. The Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI's.

It is your view that these Game Buddies Pillow Buddies® should be classified in subheading 9503.90.0030, HTSUSA, which provides for other toys or in the alternative as toy sets under subheading 9503.70.0030, HTSUSA. You indicate that all the characters in this line have the same intended use and belong to the same class or kind of articles that are bought, sold, and used as stuffed toys.

The competing provisions for the Game Buddies Pillow Buddies® are heading 6307, HTSUS, other made up textile articles, heading 9503, HTSUS, stuffed or other toys, or toy sets, and heading 9404, HTSUS, other pillows.

Heading 9404, HTSUS, provides for articles of bedding and similar furnishings (for example, mattresses, quilts, eiderdowns, cushions, pouffes and pillows) fitted with springs or stuffed.

A pillow is defined by Webster's Third New International Dictionary, Unabridged (1986) as "1 a : something used to support the head of a person resting or sleeping; esp : a sack or bag made typically of cloth and filled with a soft or resilient material (as feathers, down, hair, sponge rubber) : CUSHION." In defining cushions and pillows. The Random House Dictionary of the English Language, the Unabridged Edition (1983) states at p. 357, "CUSHION, PILLOW, BOLSTER agree in being cases filled with a material more or less resilient, intended to be used as supports for the body or parts of it. A CUSHION is a soft pad used to sit, lie, or kneel on, or to lean against: a number of cushions on a sofa; cushions on pews in a church. A PILLOW is a bag or case filled with feathers, down, or other soft material, usually to support the head: to sleep with a pillow under one's head."

It is the opinion of this office that so long as pillow-like articles such as Pillow Buddies® are sufficient in size and stuffing to be capable of providing support, classification in heading 9404, HTSUS, is not excluded.

The size, shape, and textures of the Game Buddies Pillow Buddies® provide a clear invitation for children to relax, snuggle, and sprawl upon their favorite animal or creature. Their attraction and function is similar to the merchandise of HQ 957560, which referred to pillow-like articles designed and shaped to resemble the heads of cartoon characters and which possessed some toy features. This seems to be similar to the use of cushions as defined above. In our opinion, cuddly novelty or specialty pillows in the shapes of different figures or objects much like the examples noted in HQ 957617, are principally marketed and used as such. Note the catalog page supplied by the importer describes the merchandise as “pillows (they’re actually pillows, not pillowcases)”. The hangtags on the articles describe them as “A soft, cuddly pillow for kids. Great for a room decoration, lounging around the house, or as a travel companion.” The reverse side of the hangtags describe the Pillow Buddies® as a “cuddly soft kid’s pillow”.

The Game Buddies Pillow Buddies® are described within the provisions of heading 9404, HTSUS. We must now consider whether these Game Buddies Pillow Buddies® are also described within the provisions of heading 9503, HTSUS, as claimed by the importer.

Chapter 95, HTSUSA, covers toys of all kinds, whether designed for the amusement of children or adults. Although the term “toy” is not specifically defined in the tariff, the ENs to Chapter 95, HTS, indicate that this chapter covers toys of all kinds whether designed for the amusement of children or adults. Customs has classified in subheadings 9503.41 through 9503.49, HTSUSA, the provisions for toys representing animals or non-human creatures, those toy animals or creatures which are full or reasonably full-figured depictions of the animals or creatures which they seek to represent, which are fully configured in the sense that they are an articulation of the character in three dimensions, i.e. a representation in a sculptured form. See HQ 951533, HQ 957560, and HQ 957617.

In the case of Louis Marx & Co., Inc. v. United States, 66 Cust. Ct. 139, C. D. 4183 (1971), the court stated that " `figures of animate objects' must be read to mean forms or representations of humans or animals." While C. D. 4183 concerned item 737.30, Tariff Schedules of the United States (TSUS), this tariff provision corresponds to subheading 9503.41.0010, HTSUSA. In HRL 079594, we stated that Customs position has been that the phrase "figures of animate objects" refers to a clearly defined configuration of an animate object in a three-dimensional form. It is, therefore, clear that there is both judicial and administrative support for the notion that the provisions for toys representing animals and non-human creatures require that a toy figure must be a full or reasonably full-figured depiction of the animal/creature it seeks to represent and that figure must be a soft, sculptured edition or an articulation in three dimensions of the head, torso, and appendages of the character being portrayed.

The Game Buddies Pillow Buddies® basically, although not completely, meet this criterion. In most cases the construction of these figures includes stuffed heads with eyes, noses, snouts and ears consisting of overlaid material in contrasting colors rather than articulated features; a stuffed, fairly block-shaped torso onto which appendages, heads, tails, scales are attached; flat and plain undersides; and arm, leg, and paw appendages which are stuffed but are configured in such a way as to form, with the torso, a basically rectangle-shaped article. Pillow Buddies® are generally designed and constructed to lie in a flat position, as would any pillow-like object. The shape of the articles enable them to be used as floor or bed pillows while watching TV, reading, relaxing, or napping. Because of this design, the anatomy of the articles is not completely and fully delineated into three-dimensional anatomically defined the animals they seek to portray.

In addition, in order for Pillow Buddies® to be classified as toys they must be principally designed for amusement. It is our view that the shapes, colors, and designs of the Game Buddies Pillow Buddies® are amusing. We note however, that their large size makes them difficult for a small child (the ultimate consumer) to manipulate and detracts somewhat from their play value, although not their amusement value as evidenced by the reactions of the children we observed with the samples submitted. To the children these were objects of much amusement. It therefore appears that the imported articles may have a dual purpose, for use as a pillow-like object, and as a toy. Customs Headquarters Ruling Letter (HRL) dated April 26, 1993 (951309) concerned M & M novelty figures designed as lids for closure of containers filled with candy. In that case we noted that the merchandise had the appearance and play value of any toy, that it could be used for amusement without being used as a closure or stopper, that the primary value of the item is its play value, and that the utilitarian aspect of the merchandise is temporary and incidental to the amusement factor. We concluded that the articles were classified as toys. (See also HQ 958785).

Upon a review of the sample submitted, and observation of how these articles were actually used by the ultimate consumers (children), the Customs Service is of the opinion, that the primary use of the Game Buddies Pillow Buddies® representing cartoon characters is in their amusement value and not in their use as a pillow-like object. The cartoon-like amusing appearance and soft, manipulative polyester fleece skin make them suitable and principally used as an object of amusement or plaything and their use for any other purpose would be secondary.

We note that in the Stipulated Judgement on Agreed Statement of Facts in Play by Play Toys and Novelties, Inc. v. United States, CIT case no. 96-02-00430, pillow-like articles similar to Pillow Buddies® but designed and shaped to resemble only the heads of cartoon characters were classified as pillows, cushions and similar furnishings under heading 9404.90, HTSUS. Furthermore, the cases cited by protestant, specifically HQ 951533, dated June 17, 1992, regarding a "Beast" pillow and HQ 951737, dated June 8, 1992, regarding a "Belle" pillow, it was determined that the pillows did not qualify for classification in heading 9404, HTSUSA, because they were not designed to afford support; the filling in those pillows merely provided shape to the pillows. In contrast the Pillow Buddies® at issue here are reasonably full-figured depiction of the cartoon animal/creature they seeks to represent. The dimensions of the head, torso, and appendages of the Pillow Buddies® are similar to those of the characters they represent. For these reasons it is our opinion that the Game Buddies Pillow Buddies® meet the requirement of a toy animal or creature and are classified in heading 9503, HTSUS.

The subheadings at issue essentially differentiate between toy animals that are stuffed and those that are not stuffed.

In determining whether an article classifiable within heading 9503 is stuffed for tariff purposes, it is Customs position that the stuffing materials must impart the shape and form of the torso of the animal or creature. Customs has also held that the "feel" of an article may be relevant to the determination as stuffed or non-stuffed. This long-standing position is based, in part, on the dictionary definition of the verb "stuff," which was adopted in Customs Information Exchange Ruling (C.I.E.) 449/46, issued August 7, 1946. The cited definition is, in part, as follows:

Stuff, v. I.t. 1. To fill to distention by crowding something into; cram; pack full; as, to stuff a trunk full of clothes;

2. Specif., to fill with material specially prepared for such use; as, to stuff a cushion

4. To cram into a small space; crowd; as, to stuff a newspaper into one's pocket.

5. To fill full or distend by crowding or being crowded into In HRL 089334, issued August 26, 1991, Customs, after citing this definition, stated that: “It is apparent that the emphasis of the above definition is upon the filling and/or distending of the article that is ‘stuffed.’” There is a generous use of words and phrases such as "cram," "crowd," and "pack full." Customs has reiterated its acceptance of the above definition on many occasions since the C.I.E. ruling was published, and has not altered its rather strict standards concerning the "stuffed" classification of articles similar to the item at issue.

In this case, the stuffing materials do impart the shape and form of the Game Buddies Pillow Buddies®, which despite the torso area of the figure feeling somewhat less than fully packed, does return to its original form after being compressed. It is our view that taken as a whole the articles adequately portray the likeness of the animal they represent. We must therefore determine whether the Game Buddies essential character is provided by the likeness of the animal it represents or by the toy game one can play with it.

The term "game," as used in the HTSUS, refers to a competition or contest for recreation or amusement, between two or more players or between one person and the game itself, involving skill, chance, endurance or any combination of these elements, played according to rules either expressed or self-evident, with a method or system of scoring, and the object of winning as a goal. See, Mego Corp. v. United States, 62 CCPA 14, CAD 1137 (1971).

In Headquarters Ruling Letter (HQ) 953122, dated April 22, 1993, Customs classified an article described as the "Splatz" game. The article consisted of two plastic paddles and two air shuttles (shuttlecocks). The paddles had Velcro adjustable straps on the back to secure the hand of the player and the shuttlecocks each had a rubber suction cup attached. "Splatz" is used by gripping the shuttlecock and throwing it like a dart, at the paddle. If the shuttlecock is thrown correctly, the shuttlecock’s suction cup portion meets and sticks to the flat side of the paddle. Promotional literature indicated that "a fast paced game of catch" could be played at "distances of 5-75 feet." Customs held that although use of "Splatz" involved play activity, basic skills, and simple scoring like a game, "Splatz" was principally used to provide amusement to children or adults, not to equip them for competition and winning.

In HQL 950401, dated July 6, 1992, Customs classified Frisbees as other toys. Customs recognized that competitive disc throwing had reached a certain level of popularity and that flying discs like the Frisbees were used in organized competition and in recreational "pick-up" games. However, Customs held that the principle use of a Frisbee continued to be as a source of fun, amusement and unique diversion, unfettered by serious competition or intense testing of ones skills and athletic ability. This conclusion was based upon the fact that Frisbees are most often displayed in stores in the sections which include toys and various unique amusement items rather than in the sports equipment sections, and continue, in the hands of the majority of users to be used as entertaining throw or toss toys, much like a toy ball, but with an added unique aerodynamic characteristic.

Finally, in HQ 953927, dated May 30, 1993, POGS (paperboard circular discs) were classified as other printed matter. POGS are circular discs of paperboard, 1-11/16 inches in diameter and 0.0415 of an inch in thickness. One side is printed with text and a picture, by a process described as "offset printing." The name POG is derived from Passion fruit, Orange and Guava. Similar discs were originally used to cap a drink made from these fruits. POGs are sometimes used to play a game, however the principal use of POGs in the United States was determined to be as a collectible.

We are of the opinion that like "Splatz," "Frisbees," and "POGS," Game Buddies is not principally designed to equip the user for competition and winning. Game Buddies has no scoring system. It isn’t "played" according to a set of rules nor is the primary purpose of the game to win. Rather, the primary purpose of the game is two-fold; to provide amusement and developmental skills by helping a young child develop eye-hand coordination and to be amused in the process with bright colors and pleasant, rewarding sounds. This analysis is confirmed by protestant’s own classification of the article not as a preschool game, but rather as a toy. As the article does not meet the definition of "game," it is not classifiable as such. As Game Buddies is principally used for development and amusement, it is classifiable as a toy.

We must therefore consider whether the Games Buddies are toys put up in sets, as claimed. In the most recent ruling cited in support of the claim of classification as “Toys, put up in sets or outfits” in subheading 9503.70, HTSUS, the quoted portion speaks to the point that some components may be used independently of the rest in a 9503.70 set without disqualifying the classification. However, integral to that concept is that the articles ”typically” are used together to provide amusement but also that “[i]t is sufficient that the components of the toy set possess a clear nexus which contemplates a use together to amuse.” HQ 959232, issued June 2, 1998 (emphasis supplied). Of the articles under consideration here, the stuffed animal and the toy game are connected to each other, by velcro®, resulting in an nexus between the animals and the ability to play the game involved. Although the animals may be used individually, the game may not be. The animal is part of what makes the game playable.

The EN to subheading 9503.70 indicates that “for the purpose of this subheading: ...‘Sets’ are two or more different types of articles (principally for amusement), put up in the same packing for retail sale without repacking. Simple accessories or objects of minor importance intended to facilitate the use of the articles may also be included.” The product under consideration here is a stuffed animal with a toy game. Together they make the game playable, and are more than just a stuffed toy. Consequently, they do constitute toys put up in sets.

In consequence of the above-described goods being put up in a form clearly indicating their use as toys, forming a set put up for retail sale, they must be separately together in subheading 9503.70.0000, HTSUSA, as other toys.

Heading 6307, HTSUS, provides for other made up articles of textiles. It is a basket provision wherein a variety of merchandise is classified when no other heading more specifically provides for given merchandise. This is not the situation in this case.

HOLDING:

The Game Buddies Pillow Buddies® are classifiable in subheading 9503.41.0010, HTSUSA, which provides for “Other toys, put up in sets or outfits, and parts and accessories thereof”

Sincerely,

John A. Durant, Director

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