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HQ 960479




November 24, 2000

CLA2 RR:CR:TE 960479 SG

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.41.0010

Port Director
U.S. Customs Service
200 East Bay Street
Charleston, S.C. 29401

RE: Application For Further Review of Protest No. 1601-97-100087; Classification of Stuffed Pillow-like Articles in Form of Variety of Animals; Pillow Buddies®: Pillows: Stuffed Toys

Dear Sir:

This is in response to the request for further review of a protest timely filed on behalf of Crown Crafts, Inc., against your decision on the proper classification of various stuffed articles depicting animals or creatures trademarked as “Pillow Buddies®” which were imported from Hong Kong. The Pillow Buddies® were classified when entered on October 3, 1996, as other made up textile articles in subheading 6307.90.9989, Harmonized Tariff Schedule of the United States Annotated (HTSUSA). The importer has protested the classification and claims the proper classification of these articles is as stuffed toys under subheading 9503.41.0010, HTSUSA, or if not considered to be sufficiently stuffed, as other toys representing animals or non-human figures under subheading 9503.49.0020, HTSUSA. Our decision follows.

FACTS:

The samples are pillow-like articles designed and shaped to resemble various animals and creatures. An enclosure lists the Pillow Buddies® styles as a gray rabbit, elephant, cat, pig, both green and purple dinosaurs, lion, panda, raccoon, reindeer, snowman, whale, tiger, dog, cow, dalmation, jack-o-lantern, Christmas bear, grey and pink rabbits, baby lamb, fish, penguin, flipper, and hatching chicky. A number of samples were submitted. In literature submitted the reindeer, Christmas bear, jack-o-lantern, and hatching chicky are also described as Holiday Buddies®. Each Pillow Buddies® differs depending on the animal or creature 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 their widest point. They are an average of 5 inches thick. The construction of these articles include 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. These features make the Pillow Buddies® eminently suitable for use in a stretched out and prone position on its stomach and impractical for use in any other position.

ISSUE:

Whether the proper classification of Pillow Buddies® is in heading 6307, HTSUS, as other made up textile articles, in heading 9503, HTSUS, as stuffed or other toys, 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.

The protestant contends that these Pillow Buddies® should be classified in subheading 9503.41.0010, HTSUSA, which provides for stuffed toys representing animals or non-human creatures, or in the alternative in subheading 9503.49.0020, HTSUSA, as other (than stuffed) toys representing animals or non-human creatures.

The competing provisions for the Pillow Buddies® are heading 6307, HTSUS, other made up textile articles, heading 9503, HTSUS, stuffed or other toys, 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 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 Pillow Buddies® are described within the provisions of heading 9404, HTSUS. We must now consider whether the 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, HTSUS, 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 idea 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 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 rectangular article. The 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 sculpted fully three-dimensional anatomical definition of the animals or creatures 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 Pillow Buddies® are designed to amuse. 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) 951309, dated April 26, 1993, 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 commercial samples submitted, and observation of how these articles were actually used by the ultimate consumers (children), the Customs Service is now of the opinion, that the primary use of the Pillow Buddies® is in its amusement value and not in its use as a pillow-like object. Its cartoon-like amusing appearance, and soft, manipulative polyester fleece skin make it suitable as an object of amusement or plaything. It appears to be principally used as a toy and its 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, in 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® are reasonably full-figured depictions of the animal/creature they represent. In addition, the Pillow Buddies® could be used for support, as for example, if placed along the spine of a chair to provide support to the lower back. The filling as such, does not merely provide shape to the pillow, but also offers support.

For these reasons it is our opinion that the Pillow Buddies®, including the Holiday 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; 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 Pillow Buddies®, although the torso area of the figures feel somewhat less than fully packed, the torso does return to its original form after being compressed. It is our view that taken as a whole the articles adequately portray animal likeness and that the stuffed toy animals provide the essential character of the Pillow Buddies®. 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 Pillow Buddies®, including those described as Holiday Buddies® are classifiable in subheading 9503.41.0010, HTSUSA, which provides for “Toys representing animals or non-human creatures: Stuffed toys: Stuffed toys.”

Therefore, based on the foregoing discussion, you are instructed to DENY the protest except to the extent that classification as provided herein results in a full or partial refund, as appropriate.

In accordance with Section 3A (11)(b) of Customs Directive 0993550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision.

Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.treas.gov., by means of the Freedom of Information Act and other methods of public distribution.

Sincerely,

John A. Durant, Director

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