CLA-2 RR:CR:GC 963907 KBR
Mr. Munford Page Hall, II
Dorsey & Whitney LLP
1001 Pennsylvania Avenue, N.W.
Suite 300 South
Washington, D.C. 20004
RE: Reconsideration of NY E89321; POKÉMON Animated “Clip Buddy” Electronic Watch/Toy
Dear Mr. Hall:
This is in regard to your letter dated March 31, 2000, on behalf of Trendmasters, Inc., in which you request reconsideration of New York Ruling Letter (NY) E89321, issued to you by the Customs National Commodity Specialist Division, dated November 22, 1999, concerning the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of the POKÉMON Animated Clip Buddy. In preparing this ruling we have given consideration to arguments you made in our meeting on February 28, 2001, and your additional submission dated March 26, 2001. We have reconsidered NY E89321 and affirm the classification.
FACTS:
The POKÉMON animated clip buddy has a metal “lobster claw” clasp at one end. The clasp may be used to attach to a belt, belt loop or backpack strap. Hanging from a loop on the base of the clasp is an oval dog tag-like ornament with a POKÉMON character depicted on it. The base of the clasp is attached to a vinyl strip with a POKÉMON character or lightning bolt depicted on it. The other end of the vinyl strip is attached to a circular shaped plastic housing with a metal back plate held on by four screws. The plastic component contains a liquid crystal display screen (LCD), speaker, three buttons and a reset access powered by a lithium battery. The features of the article can be activated by pressing, in various combinations, the buttons on the plastic housing. The article has five modes of operation: Idle, Character, Sound, Stopwatch and Alarm. In Idle mode, the article displays random animation and sounds and by pressing a button will tell or display the time. In Character mode, the article displays its entire array of animated performances. The Sound mode, allows the 16 sound statements to be turned on or off. Stopwatch mode allows the article to be used as an elapsed time stopwatch. The Alarm mode allows the setting of an alarm to go off at a particular time. The alarm is in the form of an animation and sound.
Samples of two types of packaging were provided. The first type is clear plastic bubble pack with printed cardboard inserts, showing the article inside and allowing a potential purchaser to push one of the buttons to activate an animation with sound. The printing on the inserts reads “POKÉMON Gotta catch ‘em all!” “[Character Name] Try Me! FOR DEMO” “Animated Pocket Watch” “[Character Name] SAYS THE TIME” “Animation & Sound!” “CLIPS ANYWHERE!” The second type of packaging is a cardboard box which is printed with “POKÉMON Gotta catch ‘em all!” and “POKÉMON Animated Clip Buddy” The article is inside the box in cut to shape foam padding. There is no access to the article without opening the cardboard box. The instruction sheet for using the article refers to the article as a “toy”.
In your additional submission you including advertising for various POKÉMON articles including the subject clip buddy. You submitted two brochures of products, one titled “INNOVATIVE TIME Corporation”, the other “C Watch 2001”. These brochures are filled with wrist watches, clocks, and pocket watches. Many of the examples in the brochures besides their time functions feature animation of real and cartoon characters, music, and sounds. The watch bands; watch and clock faces and hands; and supplemental included tags and clips, are decorated with cartoon characters and statements associated with the particular design of the watch.
ISSUE:
Whether the POKÉMON animated clip buddy is a toy of heading 9503, HTSUS, or a watch of heading 9102, HTSUS.
LAW AND ANALYSIS:
Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI.
In interpreting the headings and subheadings, Customs looks to the Harmonized Commodity Description and Coding System Explanatory Notes (EN). Although not legally binding, they provide a commentary on the scope of each heading of the HTSUS. It is Customs practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
In NY E89321 the POKÉMON animated clip buddy was classified in subheading 9102.91.20, HTSUS. This provision is as follows:
Wrist watches, pocket watches and other watches, including stop watches, othen than those of heading 9101:
Other:
Electrically operated
With opto-electronic display only
The other provision under consideration is as follows:
9503 Other toys; reduced-size (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof:
9503.90.00 Other
The POKÉMON animated clip buddy has the necessary features to operate as a fully functional watch, including a stop watch function and an alarm setting. Therefore, the article is described by subheading 9102.91.20, HTSUS. However, the article also has functions associated with a toy.
Chapter 95, HTSUS, 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, indicate that this chapter covers toys of all kinds whether designed for the amusement of children or adults.
In HQ 960136 (July 24, 1997), Customs cited United States v. Topps Chewing Gum, Inc., 58 CCPA 157, C.A.D. 1022 (1971), to give the following definition of a toy:
it was held that articles which may lack the material features to be a manipulative plaything as such, but because of their cartoon-like, comical appearance, or scary look, would likely be used as an interesting or novelty decorative object, are considered primarily used for amusement purposes or as a source of frivolous entertainment for children or adults. In other words, if the article’s appearance generates the same type of emotional reaction one derives from playing with objects commonly recognized as toys, the article’s principal use is to amuse. Therefore, the article is capable of being classifiable as a toy.
Where merchandise might have another purpose in addition to providing amusement, the primary purpose of the item must be its amusement value to be classified as a toy. In considering the marketing and physical characteristics of the article, we find the watch features to be predominant and the toy-like features to be other than the principal use. In Ideal Toy Corp. v United States, 78 Cust. Ct. 28 (1977), the court stated that "when amusement and utility become locked in controversy, the question becomes one of determining whether amusement is incidental to the utilitarian purpose, or whether the utility purpose is incidental to the amusement." In HQ 085267 (May 9, 1990) Customs found that for a drawing kit including a jacket, “[a]lthough they may tend to amuse those who use them, such amusement is incidental to their primary purpose.” In HQ 960859 (June 5, 1998), concerning a child safety seat with toy features, Customs stated that:
“[c]learly, elements of the [article] are designed to amuse a child.
However, Customs believes those design elements … are secondary
to the article’s primary purpose….”
While the instant article may have amusing features, we find the primary purpose of the POKÉMON article to be that of a watch.
We find that the classification of the POKÉMON animated clip buddy is determined by the watch function. The U.S. Court of International Trade (CIT) has provided factors, which are indicative but not conclusive, to apply when determining whether merchandise falls within a particular class or kind. They 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. See; Kraft, Inc, v. United States, USITR, 16 CIT 483, (June 24, 1992); G. Heilman Brewing Co. v. United States, USITR, 14 CIT 614 (Sept. 6, 1990); and United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979. The general appearance of the POKÉMON article is that of a pocket watch. The marketing of the POKÉMON clip buddy is as a pocket watch for young children. The most prominent description on the blister packaging states the article is an “Animated Pocket Watch”. In the additional submission and in the meeting you argued that Trendmasters is a “toy” company, and their products are sold as toys. However, two product catalogue brochures were submitted both of which only feature what are clearly watches and clocks which are marketed by Trendmasters. These two brochures clearly establish Trendmasters as a watch-making company. The animated characteristics of some of what are clearly watches in the additional submission are not dissimilar from the ones on the instant POKÉMON articles.
You argue that the packaging is made so that a button can be depressed to show the POKÉMON character and sound, not the time features. However, the wording which appears on the packaging still leads a purchaser to consider the article a watch. We find that the POKÉMON features provide a stylistic reason to purchase this watch over a different watch. The POKÉMON features do not remove the article from being a watch. Therefore, we find that the POKÉMON animated clip buddy is not a toy provided for in chapter 95, but is a watch classified in subheading 9102.91.20, HTSUS.
HOLDING:
The POKÉMON animated clip buddy is classifiable in subheading 9102.91.20, HTSUS, as wrist watches, pocket watches and other watches; electrically operated; with opto-electronic display.
NY E89321 is affirmed.
Sincerely,
John Durant, Director
Commercial Rulings Division