CLA-2 RR:CR:TE 964167 SG
Barbara Wierbicki, Esq.
Thompkins & Davidson, LLP
One Astor Plaza
1515 Broadway
New York, N.Y. 10036-8901
Re: Classification of Stuffed Pillow-like Articles in Form of Variety of Cartoon Characters: Pokeman™ Cuddle Pillows: Pillows: Stuffed Toys
Dear Ms. Wierbicki:
This is in response to your letter of May 2, 2000, wherein you request, on behest of your client, Avon Products, Inc., that we issue a binding classification ruling on various stuffed articles depicting well known cartoon characters trademarked as “Pokeman™ Cuddle Pillows” which will be imported from China. It is your position that the proper classification of these articles is as stuffed toys under subheading 9503.41.0010, HTSUSA.
FACTS:
The samples are pillow-like articles designed and shaped to resemble various creatures. These Pokeman™ (short for Pocket Monster) Cuddle Pillow styles are described as Pikachu, Togepi and Jiggly-Puff. Samples were provided. Pikachu's outer surface is composed of 100% polyester which is stuffed with 100% polyester fiberfill, giving it a soft, resilient feel. It measures approximately 24 inches long by 15 inches at the widest point and 3 inches thick. It has a stuffed head with horns. The eyes, nose, cheeks and tail are overlaid material in contrasting colors. The mouth appears to be entirely composed of a single line of textile stitches. Pikachu has a stuffed, fairly block-shaped torso onto which appendages, e.g., heads, and arm and leg paws, are attached. The arms, legs, and paws are stuffed but are configured in such a way as to form, together with the torso, a block shaped article. The other cartoon character Pokeman™ Cuddle Pillows are similar in size and construction.
ISSUE:
What is the proper classification of Pokeman™ Cuddle Pillows representing cartoon characters?
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 International Harmonized System, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI's.
The competing provisions for the cartoon character Pokeman™ Cuddle Pillows are heading 6307, HTSUS, other made up textile articles, heading 9503, HTSUS, other toys, and heading 9404, HTSUS, articles of bedding and similar furnishings.
It is your view that these Pokeman™ Cuddle Pillows cartoon character should be classified in subheading 9503.41.0010, HTSUSA, which provides for stuffed toys representing animals or non-human creatures. In support thereof you cite a number of New York Rulings including D81816, dated September 15, 1998, and E80193, dated April 5, 1999, in which other cartoon characters have been held to be toys. You indicate that all the characters in your 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.
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 character Pokeman™ Cuddle Pillows 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 cartoon character Pokeman™ Cuddle Pillows provide a clear invitation for children to relax, snuggle, and sprawl upon their favorite animal or creature. The shape of the Pokeman™ Cuddle Pillows enable them to be used as floor or bed pillows while watching TV, reading, relaxing, or napping. 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”. The hangtags on the articles describe them as “A cozy, cuddly pillow for kids. The reverse side of the hangtags describe the Pokeman™ Cuddle Pillows as a “cuddle pillow”.
The cartoon character Pokeman™ Cuddle Pillows are described within the provisions of heading 9404, HTSUS. We must now consider whether they 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, dated June 17, 1992,
HQ 957560, dated October 12, 1995, and HQ 957617, dated May 3, 1995.
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. See HQ 963390, dated November 24, 2000.
The cartoon character Pokeman™ Cuddle Pillows basically, although not completely, meet this criterion. The Pokeman™ Cuddle Pillows construction includes stuffed heads with eyes, noses, snouts and ears consisting of overlaid material configured in such a way as to form, with the torso, a basically rectangle shaped article. We note that the Pokeman™ cartoon characters on television and the World Wide Web have similar blocked shaped torsos. It appears that the Pokeman™ Cuddle Pillows may be full-scale representations of the Pokeman™ cartoon characters.
In addition, in order for Pokeman™ Cuddle Pillows to be classified as toys they must be principally designed for amusement. It is our view that the shapes, colors, and designs of the cartoon character Pokeman™ Cuddle Pillows 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 (HQ) 963390, dated November 24, 2000, concerned
cartoon character Pillow Buddies®. In that case we noted that the merchandise had a dual purpose, for use as a pillow-like object, and as a toy. Upon observation of how those articles were actually used by the ultimate consumer (the child), it was our opinion that their primary value is in its play value and not their use as a pillow-like object. We concluded that the articles were classified as toys.
Upon a review of the samples 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 cartoon character Pokeman™ Cuddle Pillows is not as pillow-like objects. The cartoon-like amusing appearance and soft, manipulative polyester 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 Pokeman™ Cuddle Pillows 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 Plaintiff, 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 Pokeman™ Cuddle Pillows at issue here are reasonably full-figured depiction of the cartoon creatures they seek to represent. The dimensions of the head, torso, and appendages of the Pokeman™ Cuddle Pillows are similar to those of the characters they represent. In addition, these Pokeman™ Cuddle Pillows could be used for support, as for example, if placed along the spine of a chair to provide support to the lower back. In addition a child could lie against it or upon it. The filling does not merely provide shape to the pillow, but also offers support.
For these reasons it is our opinion that the cartoon character Pokeman™ Cuddle Pillows are toy creatures and are properly classified in heading 9503, HTSUS.
The subheadings at issue essentially differentiate between toy creatures 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; to stuff the head with knowledge.
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 cartoon character Pokeman™ Cuddle Pillows, 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 likenesses of the cartoon characters they represent, and that the stuffed toy creatures provide the essential character of the Pokeman™ Cuddle Pillows. They are therefore classified as stuffed 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 Pokeman™ Cuddle Pillows representing cartoon characters are classifiable in subheading 9503.41.0000, HTSUSA, which provides for “Other toys…:Toys representing animals or non-human creatures…: Stuffed toys and parts and accessories thereof.”
Sincerely,
John A. Durant, Director
Commercial Rulings Division