CLA-2 CO:R:C:T 956351 CMR
William Maloney, Esq.
Eleanore Kelly-Kobayashi, Esq.
Rode & Qualey
295 Madison Avenue
New York, New York 10017
RE: Classification of certain women's knit garments; loungewear;
sleepwear v. outerwear; 6108, HTSUSA, 6104, HTSUSA, 6106,
HTSUSA
Dear Ms. Kelly-Kobayashi:
This is in response to your letter of April 29, 1994, on
behalf of Eddie Bauer, Inc., requesting a classification ruling
for certain women's knit garments which will be manufactured in
Hong Kong and imported through the ports of Seattle, Chicago and/or
Columbus. You claim these garments are classifiable as sleepwear
garments and have submitted arguments, various documents, and
sample garments to substantiate your claim.
FACTS:
The submitted samples are style 7013--a waffle knit shirt,
and style 7012--waffle knit ankle-length pants. Both garments are
made of 100 percent cotton thermal (waffle) knit fabric. Style
7013 has long sleeves with rib knit cuffs, a straight hemmed bottom
with side vents, and a scoop neck with a partial opening at the
front secured by three buttons.
Style 7012 feature a fully elasticized self-fabric covered
waistband, a fly opening secured by four buttons, no pockets, and
rib knit cuffs.
In support of your claim these garments are properly
classified as sleepwear, you state that these garments are being
purchased by your client for sale in its 1994 Holiday catalogue.
The garments will be displayed in the section of the catalogue
dedicated to bathrobes, pajamas, nightgowns and slippers and will
be described as "thermal pajama top" (style 7013) and "thermal
pajama pants" (style 7012). The garments will be sold as -2-
separates. A copy of Eddie Bauer's 1993 Holiday catalogue was
submitted to demonstrate how these garments will be displayed in
the 1994 Holiday catalogue and the type of copy that will accompany
the photographs of the garments. Additionally, you submitted
several catalogues to show how other companies are marketing
similar goods and the use of the concept of marketing as separates
garments generally thought of as being sold as one unit. The
submitted catalogues include the Eddie Bauer 1994 Mother's Day
catalogue, a Land's End Holiday catalogue, and the J.Crew 1994
Christmas catalogue.
You have submitted a copy of your client's listing of
merchandise departments and pointed out that department 045 is the
sleepwear department and that is the department which purchases
these garments.
At a meeting at our offices on June 22, 1994, a member of your
firm supplied us with advance copies of the planned artwork for the
catalogue advertising the rib knit style separates, styles 7008 and
7009. We were informed at that meeting that artwork for the waffle
knit garments at issue is unavailable, but we assume they will be
similarly marketed and advertised. We have taken into
consideration all of the information supplied in relation to this
case. In addition, we have considered information submitted with
file number 956350, a related case.
ISSUE:
Are the garments at issue, styles 7013 and 7012, described as
thermal pajama top and thermal pajama pants, properly classified
as outerwear in headings 6106 and 6104, HTSUSA, or are they
classifiable as sleepwear garments of heading 6108, HTSUSA?
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the
General Rules of Interpretation (GRIs). GRI 1 provides that
"classification shall be determined according to the terms of the
headings and any relative section or chapter notes and, provided
such headings or notes do not otherwise require, according to [the
remaining GRIs taken in order]."
In determining the classification of garments submitted to be
sleepwear, Customs considers the factors discussed in two
decisions of the Court of International Trade which are often cited
when discussing sleepwear. In Mast Industries, Inc. v. United
States, 9 CIT 549, 552 (1985), aff'd 786 F.2d 1144 (CAFC, April 1,
1986) the Court of International Trade dealt with the
classification of a garment claimed to be sleepwear. The court
cited several lexicographic sources, among them Webster's Third
New International Dictionary's which defined "nightclothes" as -3-
"garments to be worn to bed." In Mast, the court determined that
the garment at issue therein was designed, manufactured, and used
as nightwear and therefore was classifiable as nightwear.
Similarly, in St. Eve International, Inc. v. United States, 11 CIT
224 (1987), the court ruled the garments at issue therein were
manufactured, marketed and advertised as nightwear and were chiefly
used as nightwear.
In contrast, the Court of International Trade disregarded
claims regarding marketing and advertising in Regaliti, Inc. v.
United States, Slip Op. 92-80, which dealt with the classification
of garments known as leggings which were classified as pants by
Customs and claimed by the importer to be classifiable as tights.
In upholding Customs classification of the goods as pants, the
court stated:
Plaintiff's fashion merchandising experts testified that
these items were "tights," and plaintiff advertises them as
"tights." * * * .
The court is not highly persuaded by plaintiffs invoices
or advertising calling the items "tights." To avoid pants
quota limitations plaintiff must refer to the items as
"tights."
In past rulings, Customs has stated that the crucial factor
in the classification of a garment is the garment itself. As the
court pointed out in Mast, "the merchandise itself may be strong
evidence of use." Mast at 552, citing United States v. Bruce Duncan
Co., 50 CCPA 43, 46, C.A.D. 817 (1963). However, when presented
with a garment which is somewhat ambiguous and not clearly
recognizable as sleepwear or underwear or outerwear, Customs will
consider other factors such as environment of sale, advertising and
marketing, recognition in the trade of virtually identical
merchandise, and documentation incidental to the purchase and sale
of the merchandise, such as purchase orders, invoices, and other
internal documentation. It should be noted that Customs considers
these factors in totality and no single factor is determinative of
classification as each of these factors viewed alone may be flawed.
For instance, Customs recognizes that internal documentation and
descriptions on invoices may be self-serving as was noted by the
court in Regaliti. Slip-Op. 92-80. We have long acknowledged that
intimate apparel/sleepwear departments often sell a variety of
merchandise besides intimate apparel, including garments intended
to be worn as outerwear. See, HRL 955341 of May 12, 1994 and
rulings cited therein; HRL 952105 of July 1992; HRL 085672 of
October 29, 1989; and HRL 955088 of December 14, 1993. With these
points in mind, Customs has reviewed your claim that these garments
are classifiable as sleepwear and we are unpersuaded.
-4-
When considered with the other information presented, Customs
does not find the descriptions of the garments at issue as thermal
pajama top and thermal pajama pants or the fact that they are
ordered by the sleepwear department of particular significance.
What we do find of importance is the garments themselves and the
manner in which they will be presented to the public.
One of the arguments presented to support the claim that these
garments are sleepwear is that they will be advertised in the Eddie
Bauer catalogue as a sleepwear group consisting of pajama
separates. In your submission you state this sleepwear group will
also include a thermal knit nightgown and one-piece pajama or
sleepsuit which were the subject of DD 897199 of May 20, 1994, in
which the nightgown and sleepsuit were classified as sleepwear of
heading 6108, HTSUSA.
You have argued that presentation in a catalogue precludes
any ambiguity as to the intended use of a garment because the
consumer has only the description in the catalogue upon which to
rely in deciding what a garment is and how it is to be used or
worn. While it is true that such a presentation may reduce the
likelihood of ambiguity regarding a garment's intended use, it is
also true that simply identifying a garment as a "pajama" does not,
in and of itself, mean that it is sleepwear.
The term "pajamas" is defined in Charlotte Mankey
Calasibetta's Essential Terms of Fashion at 128, in relevant part,
as:
One- or two-piece item of apparel originally designed for
sleeping; later for lounging; and in the late 1960s for
entertaining, evening parties, and dining out. * * *
Popular for lounge- and beachwear in the late 1920s and 1930s.
* * * [emphasis added].
The same source includes definitions for specific types of pajamas
including:
culotte p. Floor-length pajamas with wide legs, resembling
a long dress, worn for dining in mid and late 1960s and early
1970s. Also called hostess culottes. Also see CULOTTES under
PANTS and SKIRTS. [emphasis added].
lounging p. Full-length pajamas cut in tunic or one-piece
style. Legs are side and long that give the appearance of a
skirt when not in motion. Introduced in the 1930s and used
for lounge- and beachwear. Reintroduced in mid-1960s for
evening or at-home wear. [emphasis added].
-5-
Mary Brooks Picken's The Fashion Dictionary defines pajamas (at
264) as:
Suit consisting of coat or blouse and trousers. Worn for
sleeping, lounging, beach wear, depending on the style and
fabric; more formally, for afternoon and evening wear at home.
Originally, ankle-length trousers worn by natives of India,
Persia, etc.
From the above cited definitions, it is clear that garments which
are called "pajamas" may be sleepwear, loungewear, beachwear or
streetwear.
As stated at the beginning of this discussion, the court in
Mast, 9 CIT 552, defined nightwear as "garments to be worn to bed."
In determining if a garment is classifiable as a sleepwear garment,
Customs must look to its principal use and whether the subject
garment is principally worn to bed.
Two Eddie Bauer 1993 Holiday catalogues were submitted to
demonstrate how the subject garments will be displayed in the 1994
Holiday catalogues. We note, however, that the garments displayed
in the 1993 catalogues are not ambiguous in nature. They are
clearly sleepwear garments and the advertising copy reinforces that
message with comments including:
Warm and soft, these flannels are as comforting
as a good night's sleep.
and;
Wrap up a gift of exceptional softness:
give Eddie Bauer flannel sleepwear.
We do not regard the 1993 Holiday catalogues as relevant to the
garments before us, as the garments advertised therein differ
significantly from the garments at issue here.
Of greater importance and directly relevant is the planned
artwork and advertising copy for the rib knit separates. The
advertising copy for the rib knit separates clearly identifies the
garments advertised as follows: style 7008--knit pajama top, style
7009--knit pajama pants, and style 7004--knit nightshirt. However,
the headline at the top of the page states:
Relax all morning--or all day--in the
softness of Eddie Bauer loungewear.
-6-
The copy goes on to describe the garments again as loungewear and
states: "Our pajamas are made to wear in every room of the house,
any time of day." As the court noted in Mast, at 551, "most
consumers purchase and use a garment in the manner in which it is
marketed." In our view, these garments are clearly being presented
as loungewear garments for wear other than for the primary purpose
of wearing to bed for sleeping. They are presented as multi-
purpose garments and, in fact, with the exception of the use of the
terms "pajama" and "nightshirt" in describing the goods, nothing
else in the advertising copy suggests the garments are designed or
intended for wear while sleeping. While it is argued that the
garments at issue herein "are designed, manufactured and will be
marketed . . . as garments to be worn to bed", the actual marketing
is not available. As we assume the thermal knit separates will be
advertised in a manner similar to that of the rib knit separates,
Customs does not agree that these garments will be presented to
consumers as sleepwear garments; they will be held out as casual
loungewear.
In addition, the Victoria's Secret's 1994 Summer Collection
catalogue offers garments extremely similar to the thermal knit
separates before us. On page 34 of the catalogue, photograph "A"
is a model wearing thermal knit pajamas. The copy for the garments
reads:
Thermal knit pyjamas, designed for lounging.
The garments in the Victoria's Secret catalogue differ slightly in
styling from the garments at issue and differ in that they are sold
as pajamas consisting of top and bottom garments and not as pajama
separates which is the instant case. However, they appear to be
made of the same type of thermal (waffle) knit fabric and they are
clearly held out to be loungewear, not sleepwear.
You have argued that the physical characteristics of these
garments make them suitable for sleepwear and that they are
designed, manufactured and will be marketed as sleepwear. However,
marketing for the specific garments at issue is unavailable.
Marketing of extremely similar garments by another company
advertises those garments as loungewear. Artwork for the rib knit
style separates shows they will be advertised as loungewear. In
regard to the physical characteristics, you state that the physical
characteristics of the garments make them suitable and comfortable
for sleeping and:
The design of these garments, particularly the ribbed knit
cuffs and the button fly front on the pants are incompatible
with use as outerwear. The garments lack the more attractive,
tighter lines usually associated with knit pants and tops
which are presently fashionable. -7-
In our view, styles 7013 and 7012 do not appear to be clearly
sleepwear garments. In fact, the styling of the garments and the
type of fabric used in their construction is suggestive of casual
clothing or leisure wear. Our concern in determining their
classification goes beyond suitability for use as sleepwear to
whether the garments will be primarily or principally used as
sleepwear. Additionally, we cannot allow ourselves to be limited
by current fashion as fashion is constantly changing. Tight knit
pants may be the fashion of today or perhaps the fashion of the
past two or three years. Loose knit pants may be the coming trend.
In Hampco Apparel, Inc. v. United States, 12 CIT 92 (1988),
the Court of International Trade discussed the use of garments in
determining their classification. In this regard, the court
stated:
The fact that a garment could have a fugitive use or uses
does not take it out of the classification of its original and
primary use. The primary design, construction, and function
of an article will be determinative of classification, whether
or not there is an incidental or subordinate function. Trans-
Atlantic Co., v. United States, 67 Cust. Ct. 296, 299, C.D.
4288 (1971), aff'd, 60 CCPA 100, C.A.D. 1088, 471 F.2d 1397
(1973). Hampco, 12 CIT 92, 96.
Taking into consideration all of the information before us,
especially the garments themselves, Customs believes these
garments, styles 7013 and 7012, belong to a class of garments known
as loungewear or leisurewear. These garments are multiple use
garments and are not designed and marketed for the principal or
primary use of wearing to bed for sleeping, though they may be used
for that purpose. Customs believes these garments are properly
classified as outerwear garments, not as sleepwear.
HOLDING:
Style 7013, thermal knit pajama top, is classifiable as a
women's cotton knit shirt in subheading 6106.10.0010, HTSUSA,
textile category 339, dutiable at 21 percent ad valorem.
Style 7012, thermal knit pajama pant, is classifiable as
women's cotton knit pants in subheading 6104.62.2010, HTSUSA,
textile category 348, dutiable at 16.7 percent ad valorem.
The designated textile and apparel category may be subdivided
into parts. If so, the visa and quota requirements applicable to
the subject merchandise may be affected. Since part categories are
the result of international bilateral agreements which are subject
to frequent renegotiations and changes, to obtain the most current
information available, we -8-
suggest you check, close to the time of shipment, the Status
Report On Current Import Quotas (Restraint Levels), an internal
issuance of the U.S. Customs Service which is updated weekly and
is available for inspection at your local Customs office.
Due to the changeable nature of the statistical annotation
(the ninth and tenth digits of the classification) and the
restraint (quota/visa) categories, you should contact your local
Customs office prior to importation of this merchandise to
determine the current status of any import restraints or
requirements.
Sincerely,
John Durant, Director
Commercial Rulings Division