CLA-2 CO:R:C:G 087057 CMS
4202.22.15
8517.10.00
Mr. Irving W. Smith, Jr., Esq.
Law Offices of George R. Tuttle, P.C.
1331 Pennsylvania Avenue, N.W.
Suite 1200 F
Washington, D.C. 20004
RE: Phonebag; Integrated Handbag And Telephone Set; Shoulder
Bag; Briefcase; Plastic Sheeting; Composite Good; GRI 3(b)
Dear Mr. Smith,
This is in response to your request on behalf of Dallas
Handbag Company, dated April 24, 1990, for a classification
ruling on certain "phonebags". Our ruling follows.
FACTS:
The merchandise is described in the ruling request as
"phonebags". The phonebags are handbags or briefcase type bags
with a built in telephone set. The telephone set is not a
cellular mobile telephone. It must be plugged in to an existing
phone jack in order to send or receive calls. Samples of two
models were provided.
The first model is in the shape of a briefcase and measures
approximately 15" x 12" x 4". It has an outer surface of fabric
backed cellular plastic material. The top flap of the bag
extends approximately 8" down the front of the bag and is closed
by means of two magnetic snap closures. The bag has a zippered
change pocket in the interior compartment and a detachable
shoulder strap.
The first model has a telephone push button dial selector
and electronics module built into the bag flap. The dial
selector protrudes from the outside flap portion which extends
down the front of the bag. The electronics module measures
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approximately 4" x 6" x 3/4" and protrudes from the inside of the
flap. A telephone handset is held in place on the exterior top
of the bag by a 3" wide strap with a velcro closure. A coiled
handset wire extends from the handset to a jack built in to the
flap next to the dial selector.
A 5' long phone cord with a jack on one end extends from
the electronics module. There is no cradle or other type of
switch which automatically allows the user to receive calls when
an outgoing call is completed. The user must manually operate a
switch which is situated on the outside of the electronics module
in order to switch from ingoing to outgoing call mode. A
ringer and small red light situated next to the dial selector
signal an incoming call.
The second model is in the shape of a handbag and measures
approximately 10" x 9" x 3". Its sides are tapered resulting in
the bag's bottom being slightly wider than its top. The outer
surface consists of fabric backed cellular plastics material.
The bag's flap extends approximately 2" down the front of the
bag. The bag has a zippered change pocket in the interior
compartment and a detachable shoulder strap.
The dial selector, electronics module, ringer, red light
indicator and handset cord jack of the second model are built
into the front panel of the bag, not the flap. The electronics
module protrudes from the inside of the front panel into the
interior compartment of the bag; the remainder of these
components are situated in the exterior front panel. The
handset is situated on the exterior top of the bag. The second
model functions like the first model.
ISSUE:
Is the merchandise classified as briefcases and similar
containers, and handbags of plastic sheeting in Heading 4202, or
as electrical apparatus for line telephony in Heading 8517?
LAW AND ANALYSIS:
Heading 4202 in pertinent part describes briefcases and
similar containers, and handbags and similar containers of
plastic sheeting. Heading 8517 in pertinent part describes
electrical apparatus for line telephony.
Each heading only describes part of the phonebags. GRI 3(a)
provides that when two headings refer only to part of a good then
the headings are regarded to be equally specific. Classification
thus cannot be determined by GRI 3(a) according to the heading
which provides the most specific description of the good.
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The phonebags are GRI 3(b) composite goods consisting of
handbags or briefcase type bags, and telephone sets. GRI 3(b)
provides that the goods shall be classified as if they consisted
of the component which gives them their essential character.
The Explanatory Notes to GRI 3(b), p. 4, provide that "[t]he
factor which determines essential character will vary as between
different kinds of goods. It may, for example, be determined by
the nature of the material or component, its bulk, quantity,
weight or value, or by the role of a constituent material in
relation to the use of the goods." The importer, through
counsel, submits that the costs attributed to the bag and the
phone are essentially equal.
It is argued in the ruling request that the phone gives the
product its essential character because it is the component
which makes the phonebag attractive, performs the most
significant function and sells the product because of the
novelty and convenience of having a telephone at hand. It is
argued that due to its size, buyers looking for a handbag would
especially not purchase the smaller model without giving primary
consideration to the telephone feature. It is further argued
that the handbag component may be viewed as a carrying case for
the telephone which also allows one to carry other small items.
We disagree. The phonebag is well suited for use as a bag,
especially as a novel bag which may be an attention grabber or
conversation piece. In contrast, certain features of the
telephone make it rather inconvenient for use as a telephone.
Because the phone is not a cellular mobile telephone, it must be
plugged in to an existing phone jack in order to send or receive
calls. The user of the phonebag must locate a phone jack, unplug
whatever phone is already connected to it, and plug in the
phonebag. In order to receive a call, the user must remember to
manually operate the switch to change from incoming to outgoing
call mode. The user must open the flap to the bag in order to
access the switch.
A person sending a call to the user of the phonebag would
have to know the telephone number for the jack to which the
phonebag is then connected. Due to the length of the cord, a
person holding the phonebag while waiting for a call would have
little or no mobility. If the user placed the phonebag on a
table while waiting for a call the bag would take up much more
space than a normal telephone. It is difficult to get the
phonebag to stand on its own especially when the handset is being
held when making or receiving a call.
If one wanted to use a particular phone jack, it would be
more convenient to use the telephone already connected to the
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jack, or another normal telephone borrowed from another jack.
The use of the phonebag instead of another telephone set would
achieve no benefit for billing purposes; phone charges are
normally associated with the phone jack and not the telephone set
plugged in to the jack. We simply cannot find that the phonebag
would be purchased as a telephone set so it could be carried
around in the event the user wanted to send or receive a call
from a particular jack but no telephone set was available.
In HQ 082788 (February 12, 1990), we held that a plastic
cooler with a built in transistor radio was classified as a
plastic cooler in Heading 3923. We found that the cooler
imparted the essential character of the article because it
comprised the bulk of the article, the article was a container
that functioned to store, preserve and hold, and that consumers
would be more likely to purchase the article for use as a
container rather than as a transistor radio.
The bag component of the phonebag comprises the bulk of the
article. The bag component has the features of a handbag or
briefcase type bag, including exterior flap, interior zippered
change pocket and shoulder strap. The bag component is many
times larger than a case which would merely be used to carry the
phone (in fact, the telephone handset may be used as a handle to
carry the bag). The telephone component is rather inconvenient
for use as an electrical apparatus for line telephony. The
phonebag is well suited for use as a handbag or briefcase type
bag, especially as a novel bag which may be an attention grabber
or conversation piece. The phonebag has been seen marketed in
the handbag departments of girls and ladies accessory stores.
The consumer would be more likely to purchase the phonebag for
use as a handbag than as a telephone. We find that the bag is
the component which gives the phonebag its essential character.
HQ Rulings 081373 (October 7, 1988) and 081375 (October 3,
1988) are cited in the ruling request. In these rulings we
stated that when viewing handbags, the materials of the outer
surface produce a visual impact which in many instances leaves
little or no doubt as to what material gives the outer surface
its essential character. In the matter under consideration,
however, the issue is which component gives the article its
essential character, not what material gives the outside of the
article its esential character. In any event, the visual
appearance of the phonebag is that of a bag which incorporates a
phone, not a phone which has a bag attached to it.
The argument in the ruling request that the rejection of the
trademark application for the phonebag supports the
classification of the phonebag as a telephone, is unpersuasive.
The trademark application was refused because the name
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"PHONE-BAG" was deemed to be descriptive. The Patent and
Trademark Office examining attorney who refused the trademark
application advised that no sample was submitted, and the
reference to "International Class 9" was based on the assumption
that the trademark application involved an item which was similar
to a portable cellular telephone with its specially shaped
carrying case. The description of the article in the refusal
document as a "portable telephone and carrying bag sold as a
unit" is consistent with this assumption. In fact, the
description of the product in the trademark application as
"handbags having built-in telephones" supports a finding that the
products are essentially bags, and are not essentially
telephones.
HQ Ruling 081193 (August 2, 1988), cited in the ruling
request is inapposite. The merchandise in Ruling 081193
consisted of a combination calculator/keychain. Unlike the
phonebag which has a component which imparts the essential
character (the bag), neither of the components in HQ Ruling
081193 imparted the essential character of the product.
The smaller, handbag style phonebag is classified as
handbags, whether or not with shoulder strap, with outer surface
of plastic sheeting, in 4202.22.15, HTSUSA. The larger, brief
case style phonebag is classified as briefcases, attache cases
and similar articles with outer surface of plastics in
4202.12.20, HTSUSA.
HOLDING:
The smaller, handbag style phonebag is classified as
handbags, whether or not with shoulder strap, with outer surface
of plastic sheeting, in 4202.22.15, HTSUSA. The larger, brief
case style phonebag is classified as briefcases, attache cases
and similar articles with outer surface of plastics in
4202.12.20, HTSUSA.
Sincerely,
John Durant, Director
Commercial Rulings Division