Opinion

Wilton Industries, Inc. v. United States

493 F. Supp. 2d 1294
31 Ct. Int'l Trade 863
31 C.I.T. 863
29 I.T.R.D. (BNA) 2012
2007 Ct. Intl. Trade LEXIS 94

Court: United States Court of International Trade
Filed: Jun 11, 2007
Status: Published
Author: Ridgway
On the bench: Ridgway
Cited by: 1 cases
Authority: More cited than 46.1%

The opinion

OPINION

RIDGWAY, Judge.

At stake in this action is the tariff classification of more than 280 articles imported by plaintiff Wilton Industries, Inc. — including cake toppers, as well as wedding cake figurine/topper bases, separator plates, pillars, columns, plate legs, and plate pegs; wedding cake fresh flower holders, inserts, and bowls; place card holders; various models and styles of bakeware; cookie cutters and cookie stamps; cake picks; and cake presses and cooking tools. The merchandise was imported from the People’s Republic of China through the Port of Chicago between May 5, 1999 and July 22, 1999. All entries were liquidated between March 17, 2000 and June 2, 2000.

Over the course of litigation, the parties have reached agreement on the classification of 123 articles.

See

Stipulation (Oct. 16, 2002).

In addition, Wilton has abandoned its claims as to another 15 articles.

See

Plaintiffs Amended Statement of Material Facts As To Which No Genuine Issue Exists ¶¶ 2-6.

Now pending before the Court are the parties’ cross-motions for summary judgment as to the 158 articles still at issue. Wilton contends that all remaining merchandise is properly classifiable as “festive articles” under heading 9505 of the Harmonized Tariff Schedule of the United States (“HTSUS”),

duty-free.

See generally

Memorandum in Support of Plaintiffs Motion for Summary Judgment (“Pl.’s Brief’); Memorandum in Opposition to Defendant’s Cross-Motion for Summary Judgment (“Pl.’s Reply Brief’); Supplement to Plaintiffs Memorandum of Points and Authorities (“Pl.’s Supp. Brief’); Plaintiffs Response to Defendant’s Supplemental Memorandum (“Pl.’s Supp. Reply Brief’).

According to the Government, however, the U.S. Customs Service properly classified the remaining merchandise under HTSUS heading 3924, heading 3926, heading 7615, or heading 7323 (depending on the item at issue),

liquidating it at rates of duty ranging from 3.1% to 6.5%

ad valo-rem. See generally

Defendant’s Opposition to Plaintiffs Motion for Summary Judgment and Cross-Motion for Summary Judgment (“Def.’s Brief’); Defendant’s Reply to Plaintiffs Opposition to Defendant’s Cross-Motion for Summary Judg

*1297

ment (“Def.’s Reply Brief’); Defendant’s Supplemental Memorandum in Opposition to Plaintiffs Motion for Summary Judgment and In Support of Defendant’s Cross-Motion for Summary Judgment (“Def.’s Supp. Brief’); Defendant’s Reply to Plaintiffs Supplement to Plaintiffs Memorandum of Points and Authorities (“Def.’s Supp. Reply Brief’).

For the reasons set forth below, both Plaintiffs Motion for Summary Judgment and Defendant’s Cross-Motion for Summary Judgment are granted in part and denied in part.

Background,

On its website — an online paradise for the aspiring Martha Stewarts of the world — plaintiff Wilton Industries, Inc. promotes itself as “the number one preferred brand name in baking and cake decorating products for over 50 years.”

Wilton is both a retailer (selling directly to the public, through its Online Store and its catalog, the “Yearbook of Cake Decorating”) and a wholesaler (selling to general merchandise and specialty stores, such as Target, Wal-Mart, and Michael’s).

*1299

Wilton sells the imported merchandise at issue (described in greater detail below) as seasonal goods, and as goods associated with certain special occasions. All of the merchandise is imported and sold only in conjunction with holidays or other special occasions. Many of the items are marketed in connection with a particular holiday — such as Christmas, Valentine’s Day, or Halloween — and are designed and intended specifically for use in celebration of that holiday. Other goods are marketed for so-called “private festive occasions,” such as birthdays, or weddings and anniversaries, and are similarly designed and intended specifically for use on such an occasion.

The merchandise that Wilton sells in connection with a holiday (such as Christmas, Valentine’s Day, or Halloween) is advertised and marketed in the appropriate section of the “Seasonal Shop” of Wilton’s Online Store

(e.g.,

the Christmas, Valentine’s Day, or Halloween section), and in the appropriate section of Wilton’s Yearbook catalog

(e.g.,

the Christmas, Valentine’s Day, or Halloween section). In stores such as Target, Wal-Mart, and Michael’s, such holiday merchandise is displayed and sold in the seasonal section or festive products section of the store. The stores display the holiday merchandise only in the weeks immediately preceding the holiday with which the merchandise is associated. Thus, for example, shoppers will not find Christmas tree cookie cutters or Santa-shaped baking pans on display in stores in the summer months. Nor does Wilton offer such merchandise in its Online Store or its Yearbook catalog, except in the .Christmas sections. In Wilton’s Online Store, in its Yearbook catalog, and in the retail stores that carry Wilton’s merchandise

(e.g.,

Target, Wal-Mart, and Michael’s), Wilton’s holiday-specific merchandise is displayed and marketed alongside other holiday merchandise, including festive cookware, kitchenware, and bake-ware (such as Halloween cookie jars, Christmas dinnerware, or Valentine’s Day mugs, depending on the holiday season).

Merchandise like the non-holiday merchandise at issue — wedding and anniversary merchandise, and birthday and other non-holiday bakeware, for example — is advertised and marketed in the “Wedding Shop,” the “Theme & Character Shop,” or the “Novelty Shaped Pans” section of the “Bakeware Shop” of Wilton’s Online Store, and in the “Wedding,” “Famous Charac

*1300

ters,” or “Novelty Pans” section of Wilton’s Yearbook catalog (as appropriate). Stores such as Target, Wal-Mart, and Michael’s display such merchandise year-round in the “wedding” and/or the “birthday” or “party goods” sections of their stores (as appropriate).

As described in greater detail below, the remaining merchandise at issue includes various styles of wedding cake separator plates, pillars and columns, and plate legs; Cherub Place Card Holders; several dozen different items of bakeware, as well as cookie cutters and cookie stamps; and certain cake press sets.

The Merchandise At Issue

Wedding Cake Separator Plates, Pillars/Columns, and Plate Legs.

The wedding merchandise remaining at issue consists of wedding cake “separator plates,” pillars and columns, and separator plate “legs.” All of the items are made of plastic, and are designed to be used together to separate the tiers of a multi-tiered wedding cake, to enhance the cake’s appearance and appeal at wedding celebrations.

Separator plates support each of the tiers of a multi-tiered wedding cake. The separator plates are typically round (ranging from six to eighteen inches in diameter), but also come in other shapes, including square, hexagon, oval, and heart-shaped. A separator plate can be converted to a “base plate” (used to support the bottom tier of a cake, generally the largest of the tiers) by the addition of one-inch plate “legs.” Plate “pegs” — which are no longer at issue in this action — are used to anchor the cake tiers themselves to the separator plates, and to prevent the tiers of the cake from slipping off the separator plates when the cake is cut. The coordinating pillars and columns range from three to eleven inches tall, and are designed to snap onto the undersides of the separator plates, to separate and support each tier of the wedding cake.

Because they are visible parts of a tiered wedding cake as it is presented, items such as separator plates, pillars and columns, and plate legs must be not only strong, but also aesthetically pleasing. Thus, descriptions of the items emphasize their beauty, as well as their strength and their stability. And, while the separator plates, pillars and columns, and plate legs are actually made of plastic (and thus are inexpensive enough to be disposable), they are designed to look like they are made from finely-cut crystal and other expensive materials. They are also sold in several different styles (some elegantly simple and others more ornate, some traditional and others more modern), to coordinate with one another,

and to appeal to the differing personal tastes of bridal couples by enhancing whatever overall look they are seeking to create with their wedding cake.

*1301

Although Wilton claims that the merchandise is properly classifiable as “festive articles” under HTSUS heading 9505, Customs liquidated the wedding cake separator plates, pillars, and columns as “Tableware, kitchenware, other household articles and toilet articles, of plastics: Tableware and kitchenware: Plates, cups, saucers, soup bowls, cereal bowls, sugar bowls, creamers, gravy boats, serving dishes and platters” and “Tableware, kitchenware, other household articles and toilet articles, of plastics: Tableware and kitchenware: Other,” under subheadings 3924.10.20 and 3924.10.50, respectively. The plate legs were liquidated as “Other articles of plastics ...: Othér: Other,” under subheading 3926.90.98.

Cherub Place Card Holders.

Wilton’s Cherub Place Card Holders are classic, bisque white cherub figurines (approximately three-and-one-half inches tall), designed for use at wedding receptions to hold place cards designating guests’ seating assignments or guests’ places at their tables, and to coordinate with other stylistic and design elements of the nuptial celebration. Like the other wedding merchandise discussed above, the place card holders are made of plastic, so as to be inexpensive enough to be disposable.

Wilton contends that the Cherub Place Card Holders are properly classifiable as “festive articles” under HTSUS heading 9505. However, Customs liquidated them under subheadings 3924.10.20 and 3926.90.98, as “Tableware, kitchenware, other household articles and toilet articles, of plastics: Table and kitchenware: Plates, cups, saucers, soup bowls, cereal bowls, sugar bowls, creamers, gravy boats, serving dishes and platters” and “Other articles of plastics ...: Other: Other,” respectively.

Cake Press Sets.

Cake presses are used to stamp or imprint special designs, messages, or greetings onto frosted cakes. Typically, contrasting frosting or other edible material is then piped onto the design or lettering, to further highlight it. The cake press sets at issue here feature greetings and sentiments such as “Merry Christmas,” “Happy New Year,” and “Congratulations,” as well as presses of individual words to be used in combination to form messages and greetings, such as “Best” and “Wishes.” The cake presses are made of plastic, and thus are inexpensive enough to be disposable.

Although Wilton claims that the cake press sets are properly classifiable as “festive articles” under HTSUS heading 9505, Customs liquidated them under Chapter 39, “Plastics and Articles Thereof.”

*1302

Bakeware, Cookie Cutters, and Cookie Stamps.

The bakeware at issue consists of baking pans which are made of aluminum (except for one pan), cookie cutters made of plastic (or, in one instance, stainless steel), and plastic cookie stamps.

With holiday baking a tradition in many households, Wilton’s line of bakeware predictably includes pans marketed for specific holidays (including pans in shapes such as Santa, a snowman, a heart, and a jack-o-lantern), as well as pans in a wide range of other shapes (including,

inter alia,

a dinosaur, a football, a sports utility vehicle, and a horseshoe, as well as characters and themes with special appeal for children, such as Blue’s Clues and Barbie). In addition to their special shapes, a number of the pans also feature designs in “relief’ or raised designs which are molded into the pans themselves. The baking pans can be filled with cake batter (or, in a few instances, cookie dough or pie crust dough), and placed in the oven. When removed from the pan after baking, the cake or other treat takes the special shape of the pan, and may or may not be further decorated.

Like its baking pans, Wilton’s cookie cutters are in assorted shapes such as Santa, a gingerbread man, a snowflake, a jack-o-lantern, a ghost, and a heart. The cookie cutters can be pressed down on cookie dough, producing “cut-outs” that— after baking — yield cookies in the shapes of the cutters. The resulting cookies may or may not be further decorated.

Wilton’s cookie stamps also feature a variety of designs and motifs such as a Christmas tree, a gingerbread man, and a jack-o-lantern. When a cookie stamp is pressed onto cookie dough, it “stamps” the dough with an imprint of a design or motif. The design or motif is then baked into the cookie itself. As with cookies produced using cookie cutters, cookies featuring stamped designs or motifs may or may not be further decorated after baking.

Over Wilton’s objections, Customs liquidated the bakeware as “Table, kitchen or other household articles ..., of aluminum; ...: Table, kitchen or other household articles ...: Other: Cooking and kitchen ware: Not enameled or glazed and not containing nonstick interior finishes: Other” under subheading 7615.19.70, except for one pan, which was liquidated as “Table, kitchen or other household articles ..., of iron or steel; ...: Other: Other: Not coated or plated with precious metal: Other: Cookingware” under subheading 7323.99.70. The cookie cutters and cookie stamps were liquidated as “Tableware, kitchenware, other household articles and toilet articles, of plastics: Tableware and kitchenware: Other,” under subheading 3924.10.50 (with the exception of one material cookie cutter, which was liquidated as “Table, kitchen or other household articles ..., of iron or steel; ...: Other: Of stainless steel,” under subheading 7323.93.00). Wilton contends that all the merchandise is properly classifiable as “festive articles” under HTSUS heading 9505.

“Festive Articles” Under Heading 9505

As discussed above, the Government maintains that Customs properly classified the merchandise at issue under various subheadings of HTSUS headings 3924, 3926, 7615, and 7323. However, relevant Section and Chapter Notes specifically and expressly exclude merchandise from classification under those headings if — as Wilton contends — the merchandise is classifiable under heading 9505.

See

Section Note

*1303

1(1)

(excluding from classification under Section XV — including,

inter alia,

headings under Chapters 73 and 76 — “[a]rticles of chapter 95”), Section XV (“Base Metals and Articles of Base Metals”), HTSUS; Chapter Note 2(v) (excluding from classification under headings under Chapter 39 “[a]rticles of chapter 95”), Chapter 39 (“Plastics and Articles Thereof’), HTSUS;

see also Midwest of Cannon Falls, Inc. v. United States,

122 F.3d 1423, 1429 (Fed.Cir.1997) (discussing application of similar exclusionary Chapter Note, in “festive articles” case);

Park B. Smith, Ltd. v. United States,

347 F.3d 922, 926, 928 (Fed.Cir.2003) (discussing application of similar exclusionary Section Note, in “festive articles” case). Accordingly, if the merchandise at issue is classifiable under HTSUS heading 9505, the merchandise cannot be classified as Customs liquidated it.

In its entirety, the text of HTSUS heading 9505 — including its subheadings— reads:

9505 Festive, carnival or other entertainment articles, including magic tricks and practical joke ' articles; parts and accessories thereof:

9505.10 Articles for Christmas festivities and parts and accessories thereof:

Christmas ornaments:

9505.10.10 Of glass

Other:

9505.10.15 Of wood

9505.10.25 Other

9505.10.30 Nativity scenes and figures thereof

Other:

9505.10.40 Of plastics

Artificial Christmas trees

Other

9505.10.50 Other

Artificial Christmas trees

Other

9505.90 Other:

9505.90.20 Magic tricks and practical joke articles; parts and accessories thereof

9505.90.40 Confetti, paper spirals or streamers, party favors and noisemakers; parts and accessories, thereof

9505.90.60 Other

See

Heading 9505, HTSUS.

The Explanatory Notes to heading 9505, in turn, further provide:

95.05 — FESTIVE, CARNIVAL OR OTHER ENTERTAINMENT ARTICLES, INCLUDING CONJURING TRICKS AND NOVELTY JOKES

9505.10 — Articles for Christmas festivities

9505.90 — Other

This heading covers:

(A) Festive, carnival or other entertainment articles, which in view of their intended use are generally made of non-durable material. They include:

(1) Decorations such as festoons, garlands, Chinese lanterns, etc., as well as various decorative articles made of paper, metal foil, glass fibre, etc., for Christmas trees

(e.g.,

tinsel, stars, icicles), artificial snow, col-oured balls, bells, lanterns, etc. Cake and other decorations

(e.g.,

animals, flags) which are traditionally associated with a particular festival are also classified here.

(2) Articles traditionally used at Christmas festivities,

e.g.,

artificial Christmas trees (these are sometimes of the folding type), nativity scenes, Christmas crackers, Christmas stockings, imitation yule logs.

(3) Articles of fancy dress,

e.g., '

masks, false ears and noses, wigs, false beards and moustaches (not being articles of postiche — heading 67.04), and paper hats. However, the heading excludes fancy dress of textile materials, of Chapter 61 or 62.

(4) Throw-balls of paper or cotton-wool, paper streamers (carnival

*1304

tape), cardboard trumpets, “blowouts”, confetti, carnival umbrellas, etc.

The heading excludes statuettes, statues and the like of a kind used for decorating places of worship.

(B) Conjuring tricks and novelty jokes,

e.g.,

packs of cards, tables, screens and containers, specially designed for the performance of conjuring tricks; novelty jokes such as sneezing powder, surprise sweets, water-jet button-holes and “Japanese flowers”:

This heading also excludes:

(a) Natural Christmas trees (Chapter 6).

(b) Christmas candles and Christmas tree candles (heading 34.06).

(c) Paekagings of plastics or of paper, used during festivals (classified according to constituent material, for example, Chapter 39 or 48).

(d) Christmas trees stands (classified according to constituent material).

(e) Textile flags or bunting of heading 63.07.

(f)Electric garlands of all kinds (heading 94.05).

See

Explanatory Notes, Heading 9505, HTSUS.

II.

The Standard of Review

Under USCIT Rule 56, summary judgment is appropriate where “there is no genuine issue as to any material fact and ... the moving party is entitled to [ ] judgment as a matter of law.” USCIT R. 56(c). Customs’ classification decisions are reviewed through a two-step analysis— first construing the relevant tariff headings, then determining under which of those headings the merchandise at issue is properly classified.

Bausch & Lomb, Inc. v. United States,

148 F.3d 1363, 1365 (Fed.Cir.1998)

(citing Universal Elecs., Inc. v. United States,

112 F.3d 488, 491 (Fed.Cir.1997)).

Interpretation of the relevant tariff headings is a question of law, while application of the terms to the merchandise is a question of fact.

See Bausch & Lomb,

148 F.3d at 1365 . Summary judgment is thus appropriate where the nature of the merchandise is not in question, and the sole issue is its proper classification.

See id.

(it is “clear that summary judgment is appropriate when there is no genuine dispute as to the underlying factual issue of exactly what the merchandise is”) (citation omitted).

On review, Customs’ classification decisions are afforded a measure of deference proportional to their power to persuade, in accordance with the principles set forth in

Skidmore v. Swift & Co.,

323 U.S. 134, 140 , 65 S.Ct. 161 , 89 L.Ed. 124 (1944).

See United States v. Mead Corp.,

533 U.S. 218, 235 , 121 S.Ct. 2164 , 150 L.Ed.2d 292 (2001);

Mead Corp. v. United States,

283 F.3d 1342, 1346 (Fed.Cir.2002). According to the Government, Customs’ determination in the case at bar—denying “festive articles” classification to the merchandise in dispute—is entitled to the full measure of

Skidmore

deference.

See generally

Def.’s Brief at 4, 6-7;

see also

section III.D,

infra.

III.

Analysis

The law of “festive articles” has been crisply and succinctly articulated by the Court of Appeals. The challenge lies

*1305

in the application of that law. The seminal case is

Midwest of Cannon Falls,

which established the basic criteria for classification of “festive articles” under heading 9505.

See generally Midwest of Cannon Falls, Inc. v. United States,

122 F.3d 1423 (Fed.Cir.1997). As synthesized, and distilled in

Park B. Smith,

those criteria require both (1) that the article “be closely associated with a festive occasion,” and (2) that the article be “used or displayed principally during that festive occasion.”

Park B. Smith, Ltd. v. United States,

347 F.3d 922, 927 (Fed.Cir.2003)

(citing Midwest of Cannon Falls,

122 F.3d at 1429 ). If the use or display of the article at other times would not be “aberrant,” then the article does not satisfy the criteria.

Park B. Smith,

347 F.3d at 929 .

See generally Russ Berrie & Co. v. United States,

381 F.3d 1334, 1336 (Fed.Cir.2004).

Wilton contends that all the merchandise here at issue is classifiable as “festive articles” under heading 9505. The Government vigorously disputes Wilton’s claim, advancing several different arguments.

The Government’s principal argument is a reprise of — and a variation on- — an argument that has been raised (and rejected) in prior “festive article” cases.' Specifically, the Government asserts that the “functional” or “utilitarian” nature of the subject merchandise precludes its classification as “festive articles” under heading 9505. In a related argument, the Government contends that the vast majority of the goods at issue are, at best, “one step removed” from “festive articles.”

The Government further maintains that “festive” occasions for purposes of heading 9505 are limited to recognized “holidays,” so that merchandise related to occasions such as weddings, anniversaries, and birthdays cannot be classified under that heading. In addition, as to most — if not all — of the items in dispute, the Government contests Wilton’s claim that the articles’ motifs are “closely associated with” and/or that the articles themselves are “used or displayed principally during” a particular festive occasion.

The parties’ respective claims and arguments are addressed in turn below.

The Functional/Utilitarian Nature of the Subject Merchandise

As the Government emphasizes, much of the subject merchandise can fairly be characterized as having a “functional”-or “utilitarian” purpose (at least to some degree).

*1308

The bakeware, for example, is used to bake cakes in various special shapes. In the past, however, the Court of Appeals has twice squarely rejected the Government’s claim that only “non-utilitarian” merchandise is classifiable as “festive articles” under heading 9505.

See Midwest of Cannon Falls,

122 F.3d at 1429 ;

Park B. Smith,

347 F.3d at 927 . The Government nevertheless resurrects the argument once again here, but with a new twist.

See generally

Def.’s Brief at 21-25; Def.’s Re

*1309

ply Brief at 4-6; Def.’s Supp. Brief at 11-14.

But see

Pl.’s Reply Brief at 4-11; Pl.’s Supp. Reply Brief at 3-4.

Invoking

Jewelpak,

the Government asserts that — in determining the proper scope of heading 9505 — the court should consider the Explanatory Notes to heading 9505, which were amended in 2003 to expressly exclude from the scope of that heading articles that “have a utilitarian function,” such as “kitchenware.”

See

Def.’s Brief at 21

(citing Jewelpak Corp. v. United States,

20 CIT 1402 , 950 F.Supp. 343 (1996),

aff'd,

297 F.3d 1326, 1336 (Fed.Cir.2002)); Def.’s Reply Brief at 5-6; Explanatory Notes, Heading 9505, HTSUS, at xx-9505-1 (2007) (reflecting 2003 amendment).

The plaintiff in

Jewelpak

complained, among other things, that Customs had changed the classification of the jewelry boxes there at issue based upon an amendment to the applicable Explanatory Notes.

Jewelpak,

20 CIT at 1402, 950 F.Supp. at 345 . The plaintiff maintained that, absent action by the International Trade Commission and the President to formally amend the HTSUS, Customs’ action was improper.

Id.

Finding that Customs was entitled to consider the amended Explanatory Notes, this court noted that “Congress recognized that the Explanatory Notes would be occasionally modified, and could still be ‘consulted for guidance.’”

Jewelpak,

20 CIT at 1411, 950 F.Supp. at 351 . The Court of Appeals affirmed: “[Djespite Jewelpak’s protestation, the law is clear that it was wholly appropriate to reference the Amended Explanatory Note ... to help define the proper scope of the tariff term.”

Jewelpak,

297 F.3d at 1336 (citations omitted).

But

Jewelpak

is inapposite. As Wilton emphasizes, the amendment to the Explanatory Notes at issue in

Jewelpak

came into force several years before the merchandise at issue in that case was imported.

Jewel-

*1310

pak

thus had no occasion to address the issue of “retroactivity” (for lack of a better word) that is presented in this case.

See

Pl.’s Reply Brief at 4-5;

Jewelpak,

297 F.3d at 1334 (emphasizing that, in that case, Customs’ revocation of its earlier rulings was expressly “limited to ... future importations; it did not apply retroactively to merchandise that already had been liquidated.”). In contrast, the amendment to the Explanatory Notes invoked by the Government here was not enacted, and did not become effective, until long after the merchandise at bar had been imported, and — indeed—several years after this action was filed.

The Government emphasizes that the amendment to the Explanatory Notes to heading 9505 was a “clarifying” amendment, and asserts that some countries were excluding “utilitarian” articles from the scope of heading 9505 even before the Explanatory Notes were amended.

See

Def.’s Supp. Brief at 11-14;

see also

Def.’s Brief at 23; Def.’s Reply Brief at 5-6. The Government seeks to dismiss the issue of retroactivity as an “irrelevant factual distinction.”

See

Def.’s Reply Brief at 5. But that is much too cavalier.

Even apart from the general legal principles governing the retroactive application of laws, however, there are reliance interests at stake here.

Cf. Jewelpak,

297 F.3d at 1340 (dissent) (noting that “[t]he international trade community premises its actions and decisions on the expectation that Customs will conform to ... established and uniform practices,” and that “[t]he reliance and fairness interests of the international importing community are implicated by the practices in which Customs uniformly engages” — “regardless of whether the Secretary formally deems Customs’ practice established and uniform.”).

Under the circumstances of this case, in importing the merchandise at issue, Wilton was entitled to rely on the existing state of the law of this land. Wilton was entitled to rely on the fact that, in

Midwest of Cannon Falls,

the Court of Appeals flatly and unambiguously rejected the argument that “utilitarian” goods could not be classified as “festive articles” under heading 9505.

See Michael Simon Design, Inc. v. United States,

30 CIT -, -, 452 F.Supp.2d 1316, 1323-24 (2006),

appeal docketed,

No.2007-1028 (Fed.Cir. Oct. 26, 2006) (rejecting same argument by the Government; noting that “the amended EN 95.05 contradicts the Federal Circuit’s current interpretation of the scope of heading,” that

Midwest of Cannon Falls

and

Park B. Smith

“held, without qualification, that the term ‘festive articles’ includes utilitarian articles,” and that “the Federal Circuit’s current interpretation of the meaning of the term ‘festive articles’ controls”) (footnote and citation omitted).

*1311

Contrary to the Government’s assertions, the amendment to the Explanatory Notes to heading 9505 excluding “utilitarian” articles has no relevance here. This action is controlled by the Court of Appeals’ decision in

Midwest of Cannon

Falls, as amplified by

Park B. Smith. See Midwest of Cannon Falls,

122 F.3d 1423 ;

Park B. Smith,

347 F.3d 922 .

That said, it is difficult not to be somewhat sympathetic to the frustration the Government has expressed. As the Government properly notes, the 2003 amendment to the Explanatory Notes (and other recent developments) suggest that the law of “festive articles” — in the U.S., and elsewhere — has drifted far from the HTSUS drafters’ intent. Although it will have to await another case and another day, it seems a virtual certainty that the recent developments cited by the Government will result in a sea change in the law of “festive articles.”

In the meantime, however, as discussed both above and below, the Government has identified no reasoned, principled basis for distinguishing the merchandise at issue in this action from that at issue in

Midwest of Cannon Falls, Park B. Smith,

and

Russ Berrie.

Whatever significance those decisions may hold for the classification of “festive articles” in the future, they lead directly — and largely inexorably — to the result reached here today.

The Government’s “One Step Removed” Argument

In addition to its relatively straightforward claim that the “utilitarian” or “functional” nature of the subject merchandise precludes its classification as “festive articles,” the Government advances a second, related argument, which — although ultimately unavailing — is both novel and more nuanced.

The Government points to the decision of the Canadian International Trade Tribunal (“CITT”) in

Wilton-Canada II,

which ruled that certain Christmas-themed bakeware was not classifiable under heading 9505.

See Wilton Indus. Canada Ltd. v. Comm’r of Canada Customs & Revenue Agency,

AP-2001-088 (CITT Nov. 8, 2002)

(“Wilton-Canada II”).

According to the reasoning of

Wilton-Canada II,

the baking pans there at issue were not — in and of themselves — festive articles, but instead were “used to make, or [were] one step removed from, the festive article,

*1312

that is, the Christmas cookie or cake.”

See

Def.’s Brief at 27-28

(quoting Wilton-Canada

II).

At first blush, the rationale of Wilton-Canada II has both visceral and rhetorical appeal. But, in fact, that rationale is woven from three strands of analysis (an analogy, an interpretation of U.S. law, and a public policy concern), none of which withstands close scrutiny.

Wilton-Canada II,

the CITT emphasized that the Explanatory Notes to heading 9505 list “articles that are actually used during the [Christmas] festivities,

e.g.,

Christmas crackers and Christmas stockings.”

See Wilton-Canada II,

AP-2001-088 (CITT Nov. 8, 2002). The CITT further noted that, in the Explanatory Notes, “[o]ne does not find the articles used to make such articles, for example, the patterns used to make the Christmas stockings.”

Id.

The CITT concluded: “Similarly, while cakes [in festive motifs] are covered [as ‘festive articles’ under heading 9505],

the goods used to produce them — cake and cookie pans — are not mentioned.”

Id.

(footnote added).

But the CITT’s analogy in

Wilton-Canada II

is strained at best. Patterns used to make Christmas stockings are fundamentally different from festive-themed pans used to make Christmas baked goods, in several respects. Perhaps most significantly, sewing patterns can be used to make Christmas stockings year-round. While it would be aberrant to

hang

Christmas stockings on the mantle other than at Christmas time, it would not be aberrant to

sew

such stockings at other times of the year, in anticipation of (and in preparation for) the Christmas season. Thus, it would not be aberrant to use patterns for Christmas stocking year-round.

See generally Park B. Smith, Ltd. v. United States,

347 F.3d 922, 929 (Fed.Cir.2003) (article is classifiable under heading 9505 only if its use at times other than festive occasion would be “aberrant”).

In contrast, Christmas-themed cookies and cakes generally are baked only during the Christmas season. Thus, the distinctive, festive-shaped bakeware used to make such treats is used only during the Christmas season; and its use at any other time of the year would be “aberrant.”

See id.

Indeed, as the record evidence in

Wilton-Canada II

indicated, “the preparation of ... baked goods is an integral part of the Christmas holidays.”

See Wilton-Canada II,

AP-2001-088 (CITT Nov. 8, 2002).

*1313

Just as the analogy drawn in

Wiltorir-Canada II

was (to indulge a pun) somewhat “half-baked,” so too the Canadian tribunal misread the U.S. caselaw on which it relied in reaching its decision. The CITT wrote:

Although it is clearly not bound by U.S. decisions, the Tribunal notes that, in

Midwest

and

Park Smith,

it was required that the goods be

“displayed

and used” (emphasis added) only during the festive season. The goods in issue [in the case before the CITT] are used, it could be argued, at Christmas time, but they are certainly not displayed. The appellant has not cited a case in which the goods were not displayed, but nonetheless included in heading No. 95.05.

Wilton-Canada II,

AP-2001-088 (CITT Nov. 8, 2002) (emphasis in the original)

(citing Midwest of Cannon Falls,

122 F.3d 1423 ;

Park B. Smith, Ltd. v. United States,

25 CIT 506 (2001)).

Contrary to the premise of

Wilton-Canada II,

however, nothing in the U.S. case-law to date limits “festive article” classification to only that themed merchandise which is “displayed” on festive occasions. For example, in

Park B. Smith,

the Court of Appeals observed:

Midwest of Cannon Falls

the court held that classification as a “festive article” under Chapter 95 requires that the article satisfy two criteria: (1) it must be closely associated with a festive occasion and (2) the article is

used or displayed

principally during that festive occasion.

Park B. Smith,

347 F.3d at 927 (emphasis added).

In short, to the extent that the CITT’s decision in

Wilton-Canada II

read U.S. caselaw to require that “festive articles” be “displayed” to justify classification under heading 9505, that decision was in error.

*1314

Finally, in the context of a linguistic analysis comparing the French and English texts of the language of heading 9505, the CITT voiced a public policy concern, noting that it was “not convinced that Parliament meant that

everything

used in the preparation toward Christmas festivities should be classified in heading No. 95.05 as a festive article.”

See Wilton-Canada II,

AP-2001-088 (CITT Nov. 8, 2002) (emphasis added).

At least under the law of this country, however, any such concern would be unwarranted. Whether merchandise is “used” or “displayed” (or both), U.S. case-law permits its classification under heading 9505 only if its principal “use” or “display” is limited to a festive occasion, such that its “use” or “display” at other times of the year would be “aberrant.”

See Russ Ber-rie,

381 F.3d at 1336, 1338 ;

Park B. Smith,

347 F.3d at 927, 929 ;

Midwest of Cannon Falls,

122 F.3d at 1429 . That “aberrant use” test serves as a discriminating filter, screening out the vast majority of goods that are — in the words of the CITT — “used in the preparation toward [a festive occasion],”

and precluding the classification of such goods as “festive articles” under heading 9505.

In sum, for all these reasons, the Government’s reliance on

Wilton-Canada II

in this case is misplaced. Contrary to the Government’s implication and

Wilton-Canada II,

festive bakeware is not categorically and by definition “one step removed” from “festive articles” classifiable under heading 9505 — at least not under the law of

Midwest of Cannon Falls

and

Park B. Smith.

“Festive” Occasions Within the Scope of Heading 9505

According to Wilton, much of the merchandise at issue is associated not with traditional holidays such as Halloween, Christmas, or Valentine’s Day, but instead with what Wilton terms “private festive celebrations” — special occasions such as birthdays, weddings, anniversaries, and graduations. The Government maintains that such goods are not

prima facie

classifiable as “festive articles,” because — according to the Government— only recognized “holidays” are festive occasions within the meaning of heading 9505.

See generally

Def.’s Brief at 18-19, 24-25; Def.’s Reply Brief at 3, 5; Def.’s Supp. Brief at 2-3 (asserting that “[n]either

Midwest, Smith, Russ Berrie,

*1315

Ruble’s,

nor any other court action involving classification within Heading 9505 and which was the subject of a decision of this Court or the Federal Circuit involved the classification of wedding, birthday, anniversary or any other celebratory event not related to a recognized holiday”).

The Government insists that the ship has already sailed on this issue — that is, that the Court of Appeals has previously expressly ruled that heading 9505 covers only merchandise associated with specific recognized holidays.

See generally

Def.’s Brief at 19, 24-25; Def.’s Reply Brief at 2, 5; Def.’s Supp. Brief at 3 (asserting that Court of Appeals has limited “festive articles” under heading 9505 to “particular holiday occasion[s]”). But, contrary to the Government’s assertions, whether “private festive celebrations” such as birthdays, weddings, anniversaries, and graduations are within the scope of heading 9505 is an issue of first impression — at least in the courts of the United States.

To be sure, as the Government emphasizes, the U.S. caselaw on heading 9505 has often discussed festive occasions in terms of “holidays.” In

Park B. Smith,

for example, the Court of Appeals stated that, to be classifiable as a “festive article,”

Midwest of Cannon Falls

requires that merchandise “have a direct association with and limited use to a particular

holiday

occasion.”

Park B. Smith,

347 F.3d at 929 (emphasis added).

However, the Government reads much too much into that use of the word “holiday.”

A careful review of

Park B. Smith

reveals that the Court of Appeals there used “holiday” essentially as a shorthand reference, in the context of drawing a distinction between merchandise that is properly classifiable as “festive articles” under heading 9505 and other merchandise that is merely “directed to general or seasonal use.”

See Park B. Smith,

347 F.3d at 929 .

Indeed, all the merchandise at issue in

Park B. Smith

and

Midwest of Cannon Falls

was asserted to be associated with particular recognized holidays — specifically, Valentine’s Day, Easter, the Fourth of July, Halloween, Thanksgiving, and Christmas. None of the merchandise in either of the cases was claimed to be associated with what Wilton here terms “private festive occasions.” Thus, to date the U.S. courts have had no reason to speak to whether “private festive celebrations” such

*1316

as birthdays, weddings, anniversaries, and graduations are “festive” occasions within the scope of heading 9505. The issue simply has never presented itself.

As a threshold matter, the Government overlooks the salient point: Presumably, had the drafters intended HTSUS heading 9505 to refer to “holiday” (rather than “festive”) articles, they would have used that more specific term. But they chose not to do so. Nor is there anything about the language that they did use that suggests that the language was intended to have the restrictive meaning that the Government seeks to ascribe to it.

Tariff terms — such as the term “festive” in the title of heading 9505 — are construed according to their common and commercial meanings, which are presumed to be the same.

Warner-Lambert Co. v. United States,

407 F.3d 1207, 1209 (Fed.Cir.2005). The meaning of a tariff term may be discerned by consulting dictionaries and other reliable sources of information.

Id. (citing Mead Corp. v. United States,

283 F.3d 1342, 1346 (Fed.Cir.2002)). And, contrary to the implication of the Government here, nothing in the definition of the word “festive” suggests that the term is limited to civic and religious holidays, or that it excludes private celebrations such as birthdays, weddings, anniversaries, and graduations.

According to the Encarta World English Dictionary (North American Edition), for example, “festive” is defined as “1. relating to celebration: relating to, suitable for, or typical of a feast, festival,

holiday.” Encarta World English Dictionary (North Am. Edition) (Microsoft 2007) (emphasis added). As the disjunctive “or” in that definition makes clear, “festive” occasions are not limited to holidays. Similarly, Webster’s Third New International Dictionary (Unabridged) defines the term as “1: of, belonging to, or befitting a feast, festival, or other celebration,” and — as one illustration of the use of the word — notes: “craise the flag on

public holidays and other

* * *

occasions

>.” Webster’s Third New International Dictionary (Unabridged) (Merriam-Webster Inc.2002) (emphasis added). Thus, that definition too demonstrates that “festive occasions” are not limited to “public holidays.”

Most dictionary definitions of “festive” do not even mention the word “holiday.” For example, The Oxford English Dictionary defines “festive” as “1. Of or pertaining to a feast; such as befits a feast.” The Oxford English Dictionary 853 (2d ed.1989). The definition in Webster’s New World Dictionary: Second College Edition is to the same effect: “of, for, or suited to a feast or festival; merry; joyous.” Webster’s New World Dictionary: Second College Edition 517 (William Collins 1979). Similarly, in Webster’s Ninth New Collegiate Dictionary, “festive” is defined as “1: of, relating to, or suitable for a feast or festival;] 2: JOYFUL, GAY.” Webster’s Ninth New Collegiate Dictionary 458 (Merriam-Webster Ine.1983).

Even more to the point, at least one dictionary definition goes so far as to specifically identify birthdays and weddings as “festive occasions.”

See, e.g.,

Gage Canadian Dictionary 574 (1997)

(defining “festive” as “for a feast, festival, or holiday; gay; joyous; merry:

A birthday or wedding is a festive occasion.”) (quoted in Nicholson Equip. Ltd. v. Deputy Minister of Nat’l Revenue,

AP-96-080 (CITT April 25,1997)

(“Nicholson I ”); Nicholson Equip. Ltd. v. Deputy Minister of Nat’l Revenue,

AP-97-110 & AP-97-113 (CITT Sept. 2, 1998)

(“Nicholson II”); Wilton Indus. Canada Ltd. v. Canada (Comm’r

*1317

of Customs & Revenue Agency),

AP-2001-081 (CITT Sept. 24, 2002) (“Wilton-

Canada I

”)).

Further, although the question of the occasions -within the scope of heading 9505 is an issue of first impression here, that is not to say that the matter has not been addressed by comparable tribunals and other authorities elsewhere in the world. Defining the scope of heading 9505 to include “private festive celebrations” such as birthdays, weddings, anniversaries, and graduations is consistent with the law and practice of other nations. Canadian customs and international trade authorities, for example, have expressly recognized birthdays, weddings, and anniversaries as “festive” occasions within the meaning of heading 9505.

See, e.g., Wilton I,

AP-2001-081 (CITT Sept. 24, 2002) (birthdays);

Nicholson II,

AP-97-110 & AP-97-113 (CITT Sept. 2, 1998) (birthdays, as well as “other joyous events in a child’s life”)

;

Nicholson I,

AP-96-080 (CITT April 25, 1997) (weddings and anniversaries).

Indeed, neither party has here identified any country that limits classification as “festive articles” under heading 9505 solely to merchandise associated with recognized “holidays.”

*1318

The icing on the cake — so to speak — is Customs’ agreement to classify certain merchandise at issue in this action as “festive articles” under heading 9505. The vast majority of the merchandise that is subject to the parties’ Stipulation is made up of white or clear wedding cake separator plates, pillars, and columns marketed and sold by Wilton as wedding-related merchandise, for use on the elaborately-decorated, multi-tiered cakes typically served at wedding and wedding anniversary celebrations.

See

Stipulation.

The Government thus has already agreed that

that

merchandise — like

all

the merchandise subject to the Stipulation — is classifiable as “festive articles” under heading 9505. And the Government has identified no recognized “holiday” with which the stipulated wedding cake separator plates, pillars, and columns are “closely associated.” Nor can the Government do so.

Equally, if not even more, clear cut is the Government’s agreement under the parties’ Stipulation to classify under heading 9505 Wilton’s “Black Graduation Caps Topper Set” (item # 2113-1801) — which, as its name suggests, consists of two identical, miniature black graduation caps (with the word “Graduation” in script across the front of the caps), sold for use as “cake toppers” or “party favors.” Again, the Government has identified no recognized “holiday” with which the “Black Graduation Caps Topper Set” is closely associated. Nor can it do so.

In short, the Government’s claim that “private festive celebrations” such as birthdays, weddings, anniversaries, and graduations are not “festive” occasions for purposes of heading 9505 simply cannot be reconciled with the Government’s position as evidenced in the parties’ Stipulation.

In sum, there is no merit to the Government’s claim that the “festive” occasions

*1319

within the scope of HTSUS heading 9505 are limited to “recognized” holidays. At a minimum, special occasions and events such as the weddings, anniversaries, and birthdays at issue here are “festive” occasions within the meaning of that heading.

Customs’ Claim to Skidmore Deference

Although Customs denied Wilton’s Protests in this matter without issuing a ruling letter, the Government nevertheless asserts that Customs’ position is entitled to the full measure of

Skidmore

deference.

See

Def.’s Brief at 4, 6-7

(quoting Park B. Smith,

347 F.3d at 925 , for the proposition that, “even where no formal decision has been issued with respect to specific merchandise,

‘Skidmore

weight should be given to Customs’ position’ ”).

But see

Pl.’s Reply Brief at 17-19; Pl.’s Supp. Brief at 4-9.

According to the Government,

Skidmore

deference is due because “Customs’ classification decisions in this case are consistent with its position regarding the classification of cake decorations as set forth in several Headquarters Ruling Letters (‘HQ’), New York Ruling Letters (‘NY’), and its interpretation of the tariff term ‘festive articles’ set forth in the informed compliance publication entitled ‘What Every Member of the Trade Community Should Know About Classification of Festive Articles as a result of the

Midwest of Cannon Falls

Court Case (1997).’ ”

See

Def.’s Brief at 5. But Customs has no colorable claim to deference under the circumstances of this case.

First, as noted above, not only was Customs’ position in this matter not the product of a deliberative notice-and-comment process, it was not even embodied in a ruling letter specific to the merchandise at issue in this action. Nor does the Government suggest that any of the other Customs ruling letters to which it alludes were subject to notice and comment.

See Structural Indus.,

356 F.3d at 1370 (refusing

Skidmore

deference where,

inter alia,

Customs ruling letter was not product of notice-and-comment process);

Hartog Foods Int’l, Inc. v. United States,

291 F.3d 789, 791 (Fed.Cir.2002) (extending no

Skidmore

deference “because Customs denied [the] protest without an official ruling”).

Further, the “position” for which the Government seeks deference is entirely unclear. The Government’s brief (quoted above) asserts broadly that Customs’ classification decisions in this case are “consistent with [the agency’s] position regarding the classification of cake decorations as set forth in several Headquarters Ruling Letters (‘HQ’), [and] New York Ruling Letters (‘NY’).”

See

Def.’s Brief at 5. However, nowhere in its briefs does the Government identify the specific Customs ruling letters to which it is there referring.

And nowhere in its briefs does the

*1321

Government explain how those unspecified Customs ruling letters concerning cake decorations are consistent with Customs’ actions in this case.

In addition to the unspecified Customs ruling letters that it invokes, the Government also asserts that Customs’ determination in this matter is consistent with the agency’s position on the classification of “festive articles” as set forth in the Customs publication, “What Every Member of the Trade Community Should Know About Classification of Festive Articles as a Result of the

Midwest of Cannon Falls

Court Case” (Nov.1997),

published at

32 Cust. Bull.

Dec. Nos. 2/3 at 169 (Jan. 21, 1998). However, that publication has been so thoroughly discredited that Customs has now withdrawn it.

See generally

Pl.’s Reply Brief at 18-19; Pl.’s Supp. Brief at 6-7.

The publication thus does nothing to support Customs’ claim to deference in this action. More generally, to the extent that the Government’s argument here is that Customs has taken a “consistent” position on the scope of “festive articles” under heading 9505, it is little exaggeration to say that the Court of Appeals has just as consistently rejected Customs’ position.

Further, there is nothing else about the position that Customs took at the administrative level in this case that would support a claim of deference. There is no relationship between any rationale for the agency’s denial of the protests at issue, and the arguments made here to defend those denials. In denying Wilton’s Protests, for example, Customs did not rely on the 2003 amendment to the Explanatory Notes excluding “utilitarian” or “functional” articles from the scope of heading 9505, on which the Government relies so heavily here.

See

Protests (annotated by Customs to indicate denial, stating simply that “merchandise does not qualify as toys or festive articles,” and that “mdse, does not qualify for either toys or festive articles”).

*1322

Indeed, Customs could not have done so. At the time Customs denied the Protests in 2000, no such change to the Explanatory-Notes was even under consideration by the World Customs Organization.

See

PL’s Reply Brief at 5 (noting that, in denying Protest, “Customs did not, and could not, rely upon the later-adopted Explanatory Note change as the basis for its classification of Wilton’s goods in liquidation”);

see generally Michael Simon Design,

30 CIT at -, 452 F.Supp.2d at 1323 (denying deference in “festive articles” case, noting that Government relied on 2003 amendment to Explanatory Notes in litigation, but that protest was denied solely on other grounds, which in turn were not asserted in litigation).

Nor did Customs’ denial of Wilton’s Protests make any reference to the “one step removed” argument that the Government has asserted in this litigation.

See

section III.B,

supra.

Customs’ terse dismissal of Wilton’s Protests similarly failed to focus to any degree on issues such as the scope of the “festive” occasions within the ambit of heading 9505, and the specific motifs of the merchandise here at issue — arguments that the Government has advanced strenuously in this forum.

See

section III.C,

supra;

section III.F,

infra.

For all these reasons, Customs’ position lacks “power to persuade,” and thus merits no deference in this action.

See Skidmore,

323 U.S. at 140 , 65 S.Ct. 161 .

The Classification of Merchandise in Sets

As discussed in greater detail below, some of the items at issue consist of multiples of the same article.

For example, Wilton’s Cherub Place Card Holders are sold in sets of four identical card holders. In other instances, an item consists of multiple articles that are identical, except for variations in size^ — the Star Nesting Perimeter [Cookie] Cutter Set, for example. Other items — such as the Christmas Cookie Collection Set — comprise a number of different articles (in that case, assorted Christmas cookie cutters). And, finally, the merchandise at issue includes three different types of Counter Display Units (“CDUs”), which are retail displays offered by Wilton for seasonal use in stores such as Target, Wal-Mart, or Michael’s. Each such retail display unit includes several different types of cookie cutters or cookie stamps, which the retailer sells to shoppers individually.

See generally

144 ct. North Pole Mini Cookie Cutter CDU [Counter Display Unit]; 48 ct. Jolly Stamps! Cookie Stamp CDU [Counter Display Unit]; Halloween Mini [Cookie] Cutter CDU [Counter Display Unit] (96 ct.).

Where all of the articles in a set are classifiable under a single heading of the HTSUS, no special classification analysis is required. In this case, that includes sets that are made up of several articles that are identical (or identical except for size), as well as sets that are made up of

*1323

several different articles all of which are classifiable under the same heading of the HTSUS. Further, no special analysis of the CDUs is required, because the assorted articles included in them are not “put up in sets for retail sale,” but, instead, are sold — and classified — individually.

See

Explanatory Notes VI

X, General Rule of Interpretation (“GRI”) 3(b), HTSUS.

In contrast, where an item consists of two or more articles “put up in [a] set[ ] for retail sale” and the articles within that set

“prima facie,

fall under two or more headings,” classification is governed by GRI 3(b) of the HTSUS.

Under GRI 3(b) — which sets forth the so-called “essential character” test — “goods put up in sets for retail sale ... shall be classified as if they consisted of the material or component which gives them their essential character.”

See

GRI 3(b), HTSUS.

As the Court of Appeals has emphasized, the “essential character” inquiry is fundamentally factual in nature.

See Structural Indus., Inc. v. United States,

356 F.3d 1366, 1370 (Fed.Cir.2004)

(citing Pillowtex Corp. v. United States,

171 F.3d 1370, 1376 (Fed.Cir.1999)). And, as the Explanatory Notes to GRI 3(b) make clear, there is no hard-and-fast rule for conducting that inquiry, which is more art than science:

The 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.

Explanatory Note VIII, GRI 3(b), HTSUS;

Canadian Vinyl Indus., Inc. v. United States,

76 Cust. Ct. 1, 2 , 408 F.Supp. 1377, 1378 (1976),

aff'd,

64 C.C.P.A. 97 , 555 F.2d 806 (1977) (noting that “[discernment” of “essential character” is not “an exact science”).

In addition to the examples listed in the Explanatory Notes,

Better Home Plastics

identified various other factors that may be considered in determining “essential character,” including the respective indispensability of the properties of the components of the merchandise, the respective cost of the components of the merchandise, the basis for a consumer’s decision to purchase the merchandise, the respective duration and/or frequency of the use of the components, and the manner in which the merchandise is invoiced.

See Better Home Plastics Corp. v. United States,

20 CIT 221 , 224, 916 F.Supp. 1265, 1267 (1996),

aff'd,

119 F.3d 969 (Fed.Cir.1997);

see also id.

at 19 n. 4; Pl.’s Reply Brief at 2; Pl.’s Supp. Reply Brief at 4-5. Wilton further asserts that “[t]here is no reasonable basis to distinguish the disputed merchandise ... from the goods which have been stipulated” for classification under heading 9505. Pl.’s Brief at 21.

It is true that the Government has made no meaningful attempt — really, no attempt at all — to distinguish the merchandise which is the subject of the Stipulation from the separator plates, pillars and columns, and plate legs remaining at issue.

See

Def.’s Brief at 17 n. 10.

And an independent comparison of the two lists, and a review of the exhibits illustrating the merchandise, reveals no basis for drawing meaningful distinctions.

Thus, for example, Customs stipulated to the classification under heading 9505 of

*1327

the 9" Round Crystal Separator Set (item # 301-1509), the 11" Round Crystal Separator Set (item #301-1511), and the 13" Round Crystal Separator Set (item # 301-1513). Each of those sets consists of crystal-look separator plates of the specified diameters (9", 11", or 13"), together with pillars in a corresponding size. It is therefore entirely unclear why Customs refused to stipulate to the classification of the 9" Crystal-Look Separator Plate (item #302-2035), the 11" Crystal-Look Separator Plate (item # 302-2051), and the 13" Crystal-Look Separator Plates (item # 302-2078).

Similarly, although Customs stipulated to the classification under heading 9505 of the 7" Grecian

Spiked

Pillars and the 9" Grecian

Spiked

Pillars (item # 303-3710 and item #303-3712, respectively) (emphasis added) — and although Customs stipulated to the classification under heading 9505 of the 3"

Crystal-Look

Pillars, the 5"

Crystal-Look

Pillars, and the 7"

Crystal-Look

Pillars (item #303-2171, item # 303-2196, and item # 303-2197) (emphasis added) — Customs inexplicably refused to stipulate to the classification of the 7" Crystal-Look Spiked Pillars or the 9" Crystal-Look Spiked Pillars (item #303-2322 and item # 303-2324).

Like the wedding merchandise subject to the parties’ Stipulation, the remaining wedding cake separator plates, pillars and columns, and plate legs are all classifiable as “festive articles” under HTSUS heading 9505 — as that heading is interpreted in the companion Explanatory Notes,

and

under the criteria articulated by the Court of Appeals in

Midwest of Cannon Falls

and

Park B. Smith.

Specifically, the 9" Square Separator Plate, the 13" Square Separator Plate, the 7" Hexagon Separator Plate, the 10" Hexagon Separator Plate, the 13" Hexagon Separator Plate, the 16" Hexagon Separator Plate, the 17" Crystal-Look Separator Plate, the 7" Crystal-Look Separator Plate, the 9" Crystal-Look Separator Plate, the 11" Crystal-Look Separator Plate, the 13" Crystal-Look Separator Plate, the 16/&" Heart Separator Plate, the 8/é" Oval Separator Plate, the ll/£" Oval Separator Plate, the 141// Oval Separator Plate, the 14" Tier Stand Additional Cake Plate, the 16" Tier Stand Additional Cake Plate, the 18" Tier Stand Additional Cake Plate, the 6" Separator Plate — White (Replacement), the 8" Separator Plate — White (Replacement), the 10" Separator Plate— White (Replacement), the 16" Separator Plate — White (Replacement), the 7" Crystal-Look Spiked Pillars, the 9" Crystal-Look Spiked Pillars, the

6ty

Tier Stand Additional Column, the 7 3/4" Tier Stand Additional Column, the Tall Tier Cake Stand Basic Set, and the Glue-On Plate Legs are properly classified under HTSUS subheading 9505.90.40, as “Festive, carnival or other entertainment articles ...: Other: Confetti, paper spirals or streamers, party favors and noisemakers; parts and accessories thereof.”

Cherub Place Card Holders

Also in dispute are Wilton’s Cherub Place Card Holders (item # 1001-9374).

See

Pl.’s Exh. D-1. Like the other wedding merchandise (discussed above), Wilton contends that its Cherub Place Card Holders too are classifiable as “festive articles” under heading 9505.

As discussed in section I.A above, the Cherub Place Card Holders are small, classic cherub figurines with their arms outstretched above their heads, to hold seating cards. They are designed specifically for use at wedding receptions, to designate guests’ seating assignments or guests’ places at their tables.

Like the other wedding merchandise at issue, the Cherub Place Card Holders are made of plastic, so as to be inexpensive and disposable. But, due to the nature of

*1328

the event for which they are designed, they are styled to look like much more expensive material (such as porcelain or marble), and are used to complement the other design elements of a nuptial celebration.

See generally

section I.A,

supra.

The Cherub Place Card Holders are thus “decorations” for use at a wedding celebration. And the Explanatory Notes to heading 9505 expressly state that the heading covers “[c]ake and

other decorations ...

which are traditionally associated with a particular festival.”

See

Explanatory Notes, Heading 9505, HTSUS (emphasis added); Pl.’s Brief at 16

(quoting

definition of “decoration” in American Heritage Dictionary 372 (1991), as “an object ... used to furnish or adorn with fashionable or beautiful things”); section III.C,

supra

(discussing weddings as “festive” occasions within meaning of heading 9505).

Even if the Cherub Place Card Holders were not deemed to be “decorations” within the express language of the Explanatory Notes to heading 9505, they would nevertheless be classifiable under that heading pursuant to

Midwest of Cannon Falls

and

Park B. Smith.

As a review of the exhibits submitted by Wilton reveals, both by their luxury-look design and their use of a symbol traditionally identified with love and romance, the Cherub Place Card Holders reflect classic nuptial motifs.

See Park B. Smith,

347 F.3d at 927 (citation omitted); Pl.’s Brief at 4-5 (noting that cherub is “a typical romantic theme featured at wedding or anniversary celebrations”);

see generally

PL’s Exhs. (depicting numerous items of wedding merchandise reflecting cherub motif). Indeed, as part of the Stipulation entered into by the parties to this action, Customs agreed to classify as “festive articles” under heading 9505 Wilton’s Harvest Cherub Separator Set (item # 301— 3517).

See

Stipulation. As its name suggests, that item — like numerous other pieces of Wilton’s wedding merchandise— features cherubs as the most prominent motif.

See

Stipulation.

*1329

Like Wilton’s cake separator plates, pillars and columns, and plate legs (discussed above), the Cherub Place Card Holders are wedding merchandise, and are marketed and sold as such by Wilton itself, and by the retailers to which Wilton sells the merchandise. Moreover, the design, style, and overall look of the Cherub Place Card Holders are so distinctively nuptial that their use on routine occasions would clearly be “aberrant.” See

Park B. Smith,

347 F.3d at 927, 929 .

In sum, under the criteria set forth by the Court of Appeals in

Midwest of Cannon Falls

and

Park B. Smith,

Wilton’s Cherub Place Card Holders — like its other wedding merchandise — are properly classifiable under HTSUS subheading 9505.90.40, as “Festive, carnival or other entertainment articles ...: Other: Confetti, paper spirals or streamers, party favors and noisemakers; parts and accessories thereof.”

See

Subheading 9505.90.40, HTSUS.

Cake Press Sets

The cake press sets in dispute are Wilton’s Script Message Press Set (item # 2104-2061), its Block Letter Press Set (item #2104-2077), and its All-Occasion Script Message Press Set (item #2104-2090).

See

Pl.’s Amended Exh. G-1. The cake presses are disposable and are used — alone, or in combination with one another — to stamp or imprint specific, celebratory greetings and sentiments onto frosted cakes before serving.

See generally

section I.A,

supra.

Wilton advertises and sells the cake press sets through the Cake Decorating Shop of its Online Store, and in the corresponding section of its Yearbook catalog.

*1330

Retailers such as Target, Wal-Mart, and Michael’s display the sets year-round in the “wedding” and/or the “birthday” or “party goods” sections of their stores (as appropriate).

See generally

section I,

supra.

The Explanatory Notes to heading 9505 expressly state that the heading covers

“[c]ake ... decorations ...

which are traditionally associated with a particular festival.”

See

Explanatory Notes, Heading 9505, HTSUS. Wilton emphasizes that “ ‘decoration’ is generally defined as ‘an object or group of objects used to furnish or adorn with fashionable or beautiful things.’ ”

See

Pl.’s Brief at 16

(quoting

American Heritage Dictionary 372 (1991)).

Because a cake press is “an object ... used to furnish or adorn” a cake (by imprinting the frosted cake with a special greeting or sentiment), the cake presses at issue are arguably “cake decorations” within the meaning of the Explanatory Notes to heading 9505,

and thus “festive articles” to the extent that they are “traditionally associated with a particular festival.”

See

Explanatory Notes, Heading 9505, HTSUS.

Even if they are not treated as “cake decorations” within the express language of the Explanatory Notes to heading 9505, however, the cake presses are nevertheless classifiable as “festive articles” pursuant to

Midwest of Cannon Falls

and

Park B. Smith.

The cake press greetings— such as “Merry Christmas,” “Happy New Year,” and similar sentiments appropriate for other holidays such as Easter, Thanksgiving, and Valentine’s Day — are all motifs “closely associated with” those holidays.

See Park B. Smith,

347 F.3d at 927 (citations omitted); U.S. Customs Service, “What Every Member of the Trade Community Should Know About Classification of Festive Articles as a Result of the

Midwest of Cannon Falls

Court Case” (Nov.1997),

published at

32 Cust. Bull. & Dec. Nos. 2/3 at 169, 177-78 (Jan. 21, 1998) (acknowledgment by Customs that symbols/motifs justifying “festive articles” classification may include

words and phrases,

such as “Merry Christmas,” “Happy Thanksgiving,” “Happy Easter,” and “Happy Valentine’s Day”).

Similarly, sentiments such as “Happy Birthday,” “Happy Anniversary,” “Congratulations,” and “Best Wishes” are

*1331

motifs “closely associated with” non-holiday “festive” occasions including birthdays, weddings, anniversaries, and baptisms or First Communions.

Moreover, such messages and greetings are so intrinsically linked to “festive” occasions that their use on non-special occasions would clearly be “aberrant.”

See Park B. Smith,

347 F.3d at 927, 929 . No one would decorate a cake to read “Congratulations” or “Best Wishes” — much less “Merry Christmas” or “Happy Birthday” — if the cake was to be served for dessert at a regular, everyday family dinner.

Accordingly, under the criteria set forth by the Court of Appeals in

Midwest of Cannon Falls

and

Park B. Smith,

Wilton’s Script Message Press Set, Block Letter Press Set, and All-Occasion Script Message Press Set are all properly classifiable under HTSUS subheading 9505.90.40, as “Festive, carnival or other entertainment articles ...: Other: Confetti, paper spirals or streamers, party favors and noisemakers; parts and accessories thereof.”

Bakeware, Cookie Cutters, and Cookie Stamps

The final merchandise remaining at issue — bakeware, cookie cutters, and cookie stamps — includes merchandise which is, according to Wilton, associated with Christmas, Valentine’s Day, Halloween, and birthdays (as well as a few miscellaneous other events).

Christmas Merchandise

Wilton identifies 11 items as Christmas merchandise, and asserts that all are classifiable as “festive articles” under heading 9505. Those items include the Treeliteful Pan (item # 2105-425), the Snowman Pan (item # 2105-803), the Smiling Santa Pan (item #2105-3310), the Holiday House Pan (item #2105-3311), the Poinsettia Pan (item # 2105-3312), the Star Nesting Perimeter Cutter Set (item # 2304-111), the Gingerbread Perimeter Cutter Set (item #2304-121), the Christmas Cookie Collection Set (item # 2304-802), and item # 516-1007, a Christmas cookie cutter or cookie stamp. Also included are Wilton’s 144 ct. North Pole Mini Cookie Cutter

*1332

CDU [Counter Display Unit] (item # 2301-1036), as well as its 48 ct. Jolly Stamps! Cookie Stamp CDU [Counter Display Unit] (item # 2307-1001).

See

Pl.’s Exh. E-l; Pl.’s Amended Exh. F-l.

Included in the North Pole Mini Cookie Cutter Counter Display Unit are 144 separate cookie cutters in the shapes of a Christmas tree, a snowman, an angel, a Christmas stocking, and a snowflake.

See

Letter to Court from Counsel for Plaintiff (May 15, 2007) (correcting PL’s Response to the Court’s Letter of May 7, 2007 at 5). The Jolly Stamps! Cookie Stamp Counter Display Unit includes 48 separate cookie stamps with motifs of a Christmas tree, a gingerbread man, and bells with holly.

See

Letter to Court from Counsel for Plaintiff (May 15, 2007).

As discussed elsewhere above, the listed merchandise is generally imported and sold only in conjunction with the Christmas holiday season. Indeed, much of it is distinctively Christmas merchandise. Santa Claus, Christmas trees, Christmas stockings, angels, bells with holly, poinsettias, and snowmen wearing top hats prominently decorated with sprigs of holly leaves and berries are all motifs “closely associated with” Christmas.

See Park B. Smith,

347 F.3d at 927 (citation omitted);

id.

at 926, 929 (Santa and Christmas trees);

Midwest of Cannon Falls,

122 F.3d at 1428 (angels);

Russ Berrie,

381 F.3d at 1335-36 (bells and holly);

San Francisco Candle Co. v. United States,

26 CIT 523 , 529, 206 F.Supp.2d 1304, 1312 (2002),

aff'd,

104 Fed.Appx. 714 (Fed.Cir.2004) (Christmas stockings); A Dictionary of Agricultural and Allied Terminology 583 (John N. Winburne, ed.-in-chief, Michigan State Univ. Press 1962) (“poinsettia” is “a shrub grown as

a Christmas pot plant

for its showy, usually vermilion bracts”) (emphasis added)

;

Russ Berrie,

381 F.3d at 1336 (”[s]nowmen decorated with holly).

Moreover, the symbols of Santa, Christmas trees, Christmas stockings, angels, bells with holly, poinsettias, and snowmen sporting top hats adorned with sprigs of holly are so intrinsically linked to Christmas that the use of cookie cutters and cookie stamps featuring those motifs at other times of the year would clearly be “aberrant.”

See Park B. Smith,

347 F.3d

*1333

at 927, 929. Accordingly, under the criteria articulated by the Court of Appeals in

Midwest of Cannon Falls

and

Park B. Smith,

Wilton’s Smiling Santa Pan, its Poinsettia Pan, and its Snowman Pan— together with certain cookie cutters included in its North Pole Mini Cookie Cutter Counter Display Unit (specifically, the Christmas tree cookie cutter, the Christmas stocking cookie cutter, and the angel cookie cutter), as well as certain cookie stamps included in its Jolly Stamps! Cookie Stamp Counter Display Unit (specifically, the Christmas tree cookie stamp and the bells with holly cookie stamp) — are all properly classifiable under HTSUS subheading 9505.10.50, as “Festive, carnival or other entertainment articles ...: Articles for Christmas festivities and parts and accessories thereof: Other: Other.”

Also included among the merchandise at issue is Wilton’s Christmas Cookie Collection Set — a set of ten cookie cutters in the shapes of Santa, a Christmas tree, a Christmas stocking, a nutcracker, a candy cane, a snowman, a star, a drum, a rocking horse, and a teddy bear. Like Santa, Christmas trees, and Christmas stockings (all discussed above), the nutcracker and the candy cane too are symbols “closely associated with” Christmas.

See Park B. Smith,

347 F.3d at 927 (citation omitted);

Midwest of Cannon Falls,

122 F.3d at 1428 (candy canes), 1425 (nutcrackers), 1429 (same).

Moreover, the Santa, Christmas tree, Christmas stocking, nutcracker, and candy cane motifs are so intrinsically linked to Christmas that the use of cookie cutters featuring those motifs at other times of the year would clearly be “aberrant.”

See Park B. Smith,

347 F.3d at 927, 929 .

The motifs of the remaining cookie cutters in the Christmas Cookie Collection Set — an unadorned snowman, a star, a drum, a rocking horse, and a teddy bear— are not similarly “closely associated with” Christmas, and their use at other times would not be “aberrant.”

See Park B. Smith,

347 F.3d at 927, 929 .

However,

*1334

the cookie cutters in the Christmas Cookie Collection Set are “put up in sets for retail sale,” and thus must be classified together in accordance with their “essential character.”

See generally

section III.E,

supra

(explaining classification of merchandise pursuant to GRI 3(b)).

Vis-a-vis the Christmas Cookie Collection Set, none of the illustrative “essential character” factors listed in the Explanatory Notes to GRI 3(b) is illuminating. That is, all the cookie cutters in the set are basically the same — both individually, and in their respective relationships to the set as a whole — as to matters such as “the nature of the material or component, its bulk, quantity, weight or value, or ... the role of a constituent material in relation to the use of the goods.”

See

Explanatory Note VIII, GRI 3(b), HTSUS; PL’s Response to the Court’s Letter of May 7, 2007 at 8 (asserting that all cookie cutters in the subject set “are relatively equal in size, weight, cost and utility,” and that “[a]ll cookie cutters contribute equally to the set”). On the other hand, the very name of the item — Christmas Cookie Collection Set — and the way in which it is marketed by Wilton and the retailers to which Wilton sells the merchandise are compelling evidence that it is the association of the merchandise with the Christmas holiday that drives the consumer’s decision to purchase the set.

See Better Home Plastics,

20 CIT at 224, 916 F.Supp. at 1267 ;

Conair Corp.,

29 CIT at -, 2005 WL 1941649 at * 5-*

Accordingly, under GRI 3(b) and the criteria articulated by the Court of Appeals in

Midwest of Cannon Falls

and

Parle B. Smith,

Wilton’s Christmas Cookie Collection Set is properly classifiable under HTSUS subheading 9505.10.50 as “Festive, carnival or other entertainment articles ... parts and accessories thereof: Articles for Christmas festivities and parts and accessories thereof: Other: Other.”

Wilton’s claims as to its other Christmas merchandise are, however, unavailing. For example, the Treeliteful Pan is not the holiday-specific item that its name suggests. Indeed, although Wilton’s Yearbook indicates that the pan is the company’s “most popular holiday pan,” the second line of the two-line description of the item states: “Instructions are included [with the pan] for

year-round

decorating ideas.” (Emphasis added.) To be sure, a cake baked in the pan could be frosted or otherwise decorated to look like a Christ

*1335

mas tree. But, by Wilton’s own admission

(ie.,

the promotional text quoted above), the shape of the pan itself lacks the requisite “close association with” Christmas.

See Park B. Smith,

347 F.3d at 927 (citation omitted). ■ Nor is there anything about the pan that would limit its use to Christmas, or render its use “aberrant” at other times of the year.

See id.

at 927, 929 . It is simply a pan in the shape of a fir tree.

See

Def.’s Supp. Brief at 7 (pan yields evergreen tree-shaped cake; to look like Christmas tree, cake would require further decoration). The Treeliteful Pan thus cannot be classified as a “festive article” under heading 9505 pursuant to the criteria articulated by the Court of Appeals in

Midwest of Cannon Falls

and

Park B. Smith.

It was properly classified by Customs under HTSUS subheading 7615.19.70, as “Table, kitchen or other household articles ..., of aluminum; ...: Table, kitchen or other household articles ...: Other: Cooking and kitchen ware: Not enameled or glazed and not containing nonstick interior finishes: Other.”

Similarly, the Holiday House Pan is — as its name suggests — a pan in the shape of a house. There is nothing at all inherent in the shape or design of the pan that is holiday-specific. It thus lacks any sort of “close association with” Christmas, apart from its name and its marketing as seasonal merchandise.

See Park B. Smith,

347 F.3d at 927 (citation omitted); Def.’s Reply Brief at 3 (arguing that house shape is merely a “general shape[]”). Moreover, although Wilton illustrates the item with a depiction of a cake decorated as a gingerbread house, there is nothing about the pan itself that would limit its use to gingerbread or to Christmas, or that would render its use “aberrant” at other times of the year.

See Park B. Smith,

347 F.3d at 927, 929 . The Holiday House Pan thus cannot be classified as a “festive article” under heading 9505 pursuant to the criteria articulated by the Court of Appeals in

Midwest of Cannon Falls

and

Park B. Smith.

Like the Treeliteful Pan, the Holiday House Pan was properly classified by Customs under HTSUS subheading 7615.19.70, as “Table, kitchen or other household articles ..., of aluminum; ...: Table, kitchen or other household articles ...: Other: Cooking and kitchen ware: Not enameled or glazed and not containing nonstick interior finishes: Other.”

Wilton’s case for “festive article” classification of its Star Nesting Perimeter [Cookie] Cutter Set and its Gingerbread Perimeter [Cookie] Cutter Set is no more compelling. As discussed in note 63 above, a star — without more — is simply a basic geometric shape. Thus, a preschooler learning his or her shapes might enjoy using a star-shaped cookie cutter all year long. And The Gingerbread Man is a favorite children’s folk tale, timeless and told year-round.

See, e.g.,

Nancy Nolte & Richard Scarry, The Gingerbread Man (Big Little Golden Book).

In short, neither the basic star motif nor the motif of a gingerbread family

are sufficiently “closely associated with” Christmas.

See Park B. Smith,

347 F.3d at 927 (citation omitted).

*1336

Moreover, nothing about either the Star Nesting Perimeter Cutters or the Gingerbread Perimeter Cutters would limit their use to Christmas, or render “aberrant” their use at other times of the year.

See Park B. Smith,

347 F.3d at 927, 929 ; Def.’s Brief at 20 n. 13 (articles with star motif “can be used at any time of the year”). Under the criteria articulated by the Court of Appeals in

Midwest of Cannon Falls

and

Park B. Smith,

the Star Nesting Perimeter Cutter Set and the Gingerbread Perimeter Cutter Set therefore cannot be classified under HTSUS heading 9505, and were properly classified by Customs under subheading 3924.10.50, as “Tableware, kitchenware, other household articles and toilet articles, of plastics: Tableware and kitchenware: Other.”

Similarly lacking in merit is Wilton’s claim to “festive article” classification of the remaining items included in its North Pole Mini Cookie Cutter Counter Display Unit and its Jolly Stamps! Cookie Stamp Counter Display Unit, in the motifs of snowmen, gingerbread men, and snowflakes. Like the snowmen and the gingerbread men discussed above, snowflakes also are not “closely associated with” Christmas.

See Park B. Smith,

347 F.3d at 927 (citation omitted). The snowflake motif is not Christmas-specific, but — rather — symbolic of the winter season in general.

See, e.g., San Francisco Candle Co.,

26 CIT at 527, 206 F.Supp.2d at 1310 (citing with approval Commerce Department ruling that candles decorated with snowflakes are “seasonal” and therefore do not qualify for “holiday novelty candle” exclusion from scope of antidumping order); Def.’s Brief at 18-19 (“articles directed to general or seasonal use” not classifiable as “festive articles”)

(citing Park B. Smith,

347 F.3d at 929 ).

In addition, nothing about the cookie cutters or the cookie stamp would limit their use to Christmas, or render “aberrant” their use at other times of the year.

See Park B. Smith,

347 F.3d at 927, 929 . Accordingly, under the criteria articulated by the Court of Appeals in

Midwest of Cannon Falls

and

Park B. Smith,

the snowman and snowflake cookie cutters included in Wilton’s North Pole Mini Cookie Cutter Counter Display Unit, and the gingerbread man stamp included in Wilton’s Jolly Stamps! Cookie Stamp Counter Display Unit, cannot be classified under HTSUS heading 9505. Instead, they were properly classified by Customs under subheading 3924.10.50, as “Tableware, kitchenware, other household articles and toilet articles, of plastics: Tableware and kitchenware: Other.”

Wilton claims “festive article” classification for one final piece of Christmas merchandise — item # 516-1007 — which is apparently a cookie cutter or a cookie stamp. However, Wilton is unable to produce any evidence as to the specific nature of that item, to establish that it is both “closely associated with” and used principally for Christmas.

See Park B. Smith,

347 F.3d at 927 (citation omitted); Pl.’s Supp. Brief at 2 (indicating that Wilton has no evidence as to item # 516-1007). Wilton’s claim to “festive article” classification of item # 516-1007 must therefore fail. Based on the existing state of the record, the merchandise was properly classified by Customs under HTSUS subheading 3924.10.50, as “Tableware, kitchenware, other household articles and toilet articles, of plastics: Tableware and kitchenware: Other.”

Valentine’s Day Merchandise

Wilton identifies five items as Valentine’s Day merchandise, and asserts that all are classifiable as “festive articles” under heading 9505 — the Heart Tart Singles! pan (item # 2105-1139), the Heart Spring-form Pan (item #2105-2122), the Heart Pan Set (item # 2105-2131), the Heart Gi

*1337

ant Cookie Pan (item #2105-6203), and the Heart Comfort Grip [Cookie] Cutter (item #2310-616).

See

Pl.’s Exh. E—1; Pl.’s Amended Exh. F-l. However, Wilton’s claim is lacking in merit.

All five items are imported and sold in conjunction with Valentine’s Day, and feature a “heart” motif. The four pans produce baked goods in the classic shape of a heart, and the cookie cutter slices cookie dough into classic heart shapes. But none of the items has any distinctive thematic design elements — a “Happy Valentine’s Day!” greeting, for example — to tie the merchandise specifically to Valentine’s Day.

Without more, the heart motif alone simply is not sufficiently “closely associated with” Valentine’s Day (or, for that matter, any other particular festive occasion).

See Park B. Smith,

347 F.3d at 927 (citation omitted);

Russ Berrie & Co. v. United States,

23 CIT 429 , 57 F.Supp.2d 1184 (1999) (heart-shaped terra cotta container filled with wax did not fall within “holiday novelty candle” exclusion from scope of antidumping order).

Nor would the use of the subject bake-ware at times other than Valentine’s Day be “aberrant.”

See Park B. Smith,

347 F.3d at 927, 929 . As discussed above, a young child learning different shapes might enjoy using Wilton’s Star Nesting Perimeter [Cookie] Cutters year-round, to make cookies shaped like stars. Similarly, the child could use the heart-themed cutter at issue here to make cookies in a second basic shape — a heart. As to the four pans, Wilton itself promotes year-round use of its heart-shaped bakeware. For example, touting its Heart Pans (item # 2105-5168) — not at issue in this action, but comparable in all relevant respects to the four heart-shaped baking pans here in question — Wilton’s Yearbook emphasizes: “For graceful expressions of love

on Valentine’s

*1338

Day or anytime ....

” (Emphasis added.)

Accordingly, under the criteria articulated by the Court of Appeals in

Midwest of Cannon Falls

and

Park B. Smith,

Customs properly classified the Heart Tart Singles! pan, the Heart Pan Set, and the Heart Giant Cookie Pan under HTSUS subheading 7615.19.70, as “Table, kitchen or other household articles ..., of aluminum; ...: Table, kitchen or other household articles ...: Other: Cooking and kitchen ware: Not enameled or glazed and not containing nonstick interior finishes: Other.” Similarly, the Heart Springform Pan was properly classified under HTSUS subheading 7323.99.70, as “Table, kitchen or other household articles ..., of iron or steel; ...: Other: Other: Not coated or plated with precious metal: Other: Cook-ingware.” And the Heart Comfort Grip [Cookie] Cutter was properly classified under HTSUS subheading 7323.93.00, as “Table, kitchen or other household articles ..., of iron or steel; ... Other: Of stainless steel.”

Halloween Merchandise

According to Wilton, 15 of the. items still at issue in this action are Halloween merchandise, properly classifiable as “festive articles” under heading 9505.

See

Pl.’s Exh. E — 1; Pl.’s Amended Exh. F-1. As discussed elsewhere above, the items at issue generally are imported and sold in conjunction with Halloween.

Several of the Halloween items — including Wilton’s Mini Pumpkin Pan (item #2105-1499), its Jack-O-Lantern Giant Cookie Pan (item #2105-6207), and its Pumpkin Cookie Stamp (item # 2307-1003) — feature the traditional “jaek-o-lan-tern” motif which is “closely associated with” Halloween.

See Park B. Smith,

347 F.3d at 927 (citation omitted);

Midwest of Cannon Falls,

122 F.3d at 1429 (jack-o-lantern);

Park B. Smith,

347 F.3d at 929 (jack-o-lantern);

Russ Berrie,

381 F.3d at 1335-36 (jack-o-lantern).

Moreover, jack-o-lanterns are so intrinsically linked to Halloween that the use of the jack-o-lantern cookie stamp or either of the jack-o-lantern shaped baking pans at other times of the year would clearly be “aberrant.”

See Park B. Smith,

347 F.3d at 927, 929 . Accordingly, under the criteria articulated by .the Court of Appeals in

Midwest of Cannon Falls

and

Park B. Smith,

both the Mini Pumpkin Pan and the Jack-O-Lantern Giant Cookie Pan, as well as the Pumpkin Cookie Stamp, are properly classifiable as “festive articles,” under subheading 9505.90.60 of the HTSUS.

Like its Pumpkin Cookie Stamp, Wilton’s Ghost. Cookie Stamp (item #2307-1013), its Spider Cookie Stamp (item #2307-1004), and its Bat Cookie Stamp (item # 2307-1005) also feature motifs that are “closely associated with” Halloween.

See Park B. Smith,

347 F.3d at 927 (citation omitted);

id.

at 926 (ghosts);

Russ Berrie,

381 F.3d at 1336 (ghosts);

Michael Simon Design,

30 CIT at -, 452 F.Supp.2d at 1325-26 (spiders and bats).

Further, because ghosts, spiders, and bats are so intrinsically linked to Halloween,

*1339

the use of cookie stamps with those motifs at other times of the year would be clearly “aberrant.”

See Park B. Smith,

347 F.3d at 927, 929 . Accordingly, the Ghost Cookie Stamp, the Spider Cookie Stamp, and the Bat Cookie Stamp — like the Pumpkin Cookie Stamp — are properly classifiable under HTSUS subheading 9505.90.60, under the criteria articulated by the Court of Appeals in

Midwest of Cannon Falls

and

Park B. Smith.

The motifs reflected in Wilton’s Monster Party Pan (item # 2105-2039) — a witch and a vampire, over a cauldron of witches’ brew — are just as “closely associated with” Halloween.

See Park B. Smith,

347 F.3d at 927 (citation omitted);

Russ Berrie,

381 F.3d at 1336 (witches and monsters).

In addition, because witches and vampires are so intrinsically linked to Halloween, the use of this bakeware at any other time of the year would be “aberrant.”

See Park B. Smith,

347 F.3d at 927, 929 . Accordingly, under the criteria articulated by the Court of Appeals in

Midwest of Cannon Falls

and

Park B. Smith,

like the other Halloween merchandise discussed above, Wilton’s Monster Party Pan is also properly classifiable under HTSUS subheading 9505.90.60, “Festive, carnival or other entertainment articles ...: Other: Other.”

Wilton’s Halloween Mini [Cookie] Cutter CDU [Counter Display Unit] (96 ct.) (item # 2301-1035) includes an assortment of 96 miniature cookie cutters in five different shapes — specifically, in the shapes of bats and ghosts, the word “BOO,” and two different styles of jack-o-lanterns (a Happy Jack-o-Lantern and a Scary Jack-o-Lantern).

See

Letter to Court from Counsel for Plaintiff (May 15, 2007) (correcting Pl.’s Response to the Court’s Letter of May 7, 2007 at 4-5). Like bats, ghosts, and jack-o-lanterns (discussed above), the word “BOO” is also “closely associated with” Halloween.

See Park B. Smith,

347 F.3d at 927 (citation omitted); 32 Cust. Bull. & Dec. Nos. 2/3 at 177 (Jan. 21, 1998) (acknowledgment by Customs that Halloween symbols/motifs including the word “Boo” may justify “festive article” classification). Further, use of the bat, ghost, jack-o-lantern, and “BOO” mini-cookie cutters at times of the year other than Halloween would be “aberrant.”

See Park B. Smith,

347 F.3d at 927, 929 . Accordingly, like the other Halloween merchandise discussed above, the mini-cookie cutters in the shapes of jack-o-lanterns, bats, ghosts, and the word “BOO” included in Wilton’s Halloween Mini Cutter Counter Display Unit are properly classifiable as “festive articles” under HTSUS subheading 9505.90.60, pursuant to the criteria set forth by the Court of Appeals in

Midwest of Cannon Falls

and

Park B. Smith.

Also included among the Halloween items at issue is Wilton’s Spooky Cookie Cutter Set (item #2304-9210), which includes cookie cutters in ten different shapes, including a witch, a ghost, a bat, a spider, two different jack-o-lanterns, a skeleton head, a Frankenstein head, and the words “BOO” and “EEK.” Like jack-o-lanterns, witches, ghosts, bats, spiders, and the word “BOO” (all discussed above), so too skeleton heads, Frankenstein heads, and the word “EEK” are “closely associated with” Halloween.

See Park B. Smith,

347 F.3d at 927 (citation omitted);

Russ Berrie,

381 F.3d at 1335-36 (Frankenstein monster and monsters’ heads); 32 Cust.

*1340

Bull. & Dec. Nos. 2/3 at 177 (Jan. 21,1998) (Halloween symbols/motifs including ghosts, skeletons, witches, and the word “Boo” may justify .“festive article” classification).

In addition, like the merchandise in - the motifs of jack-o-lanterns, witches, ghosts, bats, spiders, and the word “BOO” (discussed above), the use of cookie cutters in the shapes of a witch, a ghost, a bat, a spider, a jack-o-lantern, a skeleton head, a Frankenstein head, and the words i‘BOO” and “EEK” at times of the year other than Halloween would be “aberrant.”

See Park B. Smith,

347 F.3d at 927, 929 .

To the extent that all the cookie cutters in the Spooky Cookie Cutter Set would be individually classifiable under heading 9505 (as suggested above), the set as a whole is classifiable under heading 9505 without resort to a determination of the “essential character” of the set pursuant to GRI 3(b).

See generally

section III.E,

supra

(explaining classification of merchandise pursuant to GRI 3(b)). Moreover, even if several of the mookie cutters individually would not be

prima facie

classifiable under heading 9505, the set as a whole would nevertheless merit classification under that heading.

As with Wilton’s Christmas Cookie Collection Set (discussed in section III.F.4.a, above), none of the illustrative “essential character” factors set forth in the Explanatory Notes to GRI 3(b) is helpful. In other words, all the cookie cutters in the Spooky Cookie Cutter Set are basically the same — -both individually, and in their respective relationships to the set as a whole — as to matters such as “the nature of the material or component, its bulk, quantity, “weight or value, or ... the role of a constituent material in relation to the use of the goods.”

See

Explanatory Note VIII, GRI 3(b), HTSUS;

cf.

Pl.’s Response to the Court’s. Letter of May 7, 2007 at 8 (asserting that all cookie cutters in the Christmas Cookie Collection Set “are relatively equal in size, weight, cost and utility,” and that “[a]ll cookie cutters [in the Christmas Cookie Collection Set] contribute equally to the set”).

On the other hand, the very name of the item — the Spooky Cookie Cutter Set — and the manner in which it is marketed by Wilton and the retailers to which Wilton sells the merchandise are compelling evidence that it is the association of the merchandise with Halloween festivities that is the impetus for the consumer’s decision to purchase the set.

See Better Home Plastics,

20 CIT at 224, 916 F.Supp. at 1267 ;

Conair Corp.,

29 CIT at -, 2005 WL 1941649 at * 5-* 6.

Accordingly, under GRI 3(b) and the criteria articulated by the Court of Appeals in

Midwest of Cannon Falls

and

Park B. Smith,

Wilton’s Spooky Cookie Gutter Set is properly clas-

*1341

sifíable as a “festive article” under HTSUS subheading 9505.90.60.

Wilton does not fare as well on its claims as to its other Halloween merchandise. For example, notwithstanding the name of the item, the Jack-O-Lantern Nesting [Cookie] Cutter Set (item #2303-191)— like the Pumpkin Pie Pan (item #2105-3970) — features not a jack-o-lantern motif, but rather that of a plain pumpkin.

Unlike a jack-o-lantern, a plain, basic pumpkin is simply a symbol of the autumn harvest season generally. It thus lacks the requisite “close association with” Halloween.

See Park B. Smith,

347 F.3d at 927 (citation omitted); Def.’s Brief at 18-19 (“articles directed to general or seasonal use” not classifiable as “festive articles”)

(isiting Park B. Smith,

347 F.3d at 929 ), 20 n. 13 (pumpkin motif not restricted to Halloween or other festive occasion; pumpkin is “associated with the fall season or harvest in general”); Def.’s Reply Brief at 3 (pumpkin motif is merely seasonal); Pl.’s Brief at 5 (conceding that pumpkin motif is “traditionally associated with Halloween or

fall harvest celebrations ”)

(emphasis added).

Moreover, nothing about the Jack-O-Lantern Nesting Cutter Set or the Pumpkin Pie Pan would limit their use to Halloween, or render “aberrant” their use throughout the autumn of the year.

See Park B. Smith,

347 F.3d at 927, 929 ; Def.’s Brief at 20 n. 13 (use of pumpkin-shaped pan not restricted to Halloween or other festive occasion). Wilton’s Jack-O-Lantern Nesting Cutter Set and its Pumpkin Pie Pan thus cannot be classified as “festive articles” under heading 9505 pursuant to the criteria articulated by the Court of Appeals in

Midwest of Cannon Falls

and

Park B. Smith.

The cookie cutters were properly classified by Customs under HTSUS subheading 3924.10.50 as “Tableware, kitchenware, other household articles and toilet articles, of plastics: Tableware and kitchenware: Other,” and the Pumpkin Pie Pan was properly classified by Customs under HTSUS subheading 7615.19.70 as “Table, kitchen or other household articles ..., of aluminum; ...: Table, kitchen or other household articles ...: Other: Cooking and kitchen ware: Not enameled or glazed and not containing nonstick interior finishes: Other.”

Wilton’s case for “festive article” classification of its Scarecrow Cookie Stamp (item #2307-1036) and its Maple Leaf Cookie Stamp (item # 2307-1037) is just as weak. Neither the scarecrow motif nor the maple leaf motif can be said to have the requisite close association with Halloween.

See Park B. Smith,

347 F.3d at 927 (citation omitted). Instead, they are associated with the autumn and harvest seasons generally.

See, e.g.,

Def.’s Reply Brief at 3 (motifs of scarecrows and leaves are merely seasonal). Indeed, Wilton markets the two cookie stamps not as Halloween merchandise, but as “Autumn” merchandise. And the items are described in the Wilton Yearbook as seasonal merchandise: “Imprint a fun

fall design

on your homemade cookie dough ...”

See

Wilton Yearbook (emphasis added).

*1342

Further, nothing about either the Scarecrow Cookie Stamp or the Maple Leaf Cookie Stamp would limit its use to Halloween, or render “aberrant” its use throughout the months of fall.

See Park B. Smith,

347 F.3d at 927, 929 . Under the criteria articulated by the Court of Appeals in

Midwest of Cannon Falls

and

Park B. Smith,

Wilton’s Scarecrow. Cookie Stamp and its Maple Leaf Cookie Stamp therefore cannot be classified under HTSUS heading 9505, and were properly classified by Customs under subheading 3924.10.50 as “Tableware, kitchenware, other household articles and toilet articles, of plastics: Tableware and kitchenware: Other.”

In addition to the articles discussed above, Wilton also claims “festive article” classification for two final pieces of Halloween merchandise — item # 516-1002 and item # 2307-1053 — which are apparently cookie cutters and/or cookie stamps. Wilton is unable to produce any evidence as to the specific nature of those items, however, to establish that they are “closely associated with” and used principally for Halloween.

See Park B. Smith,

347 F.3d at 927 (citation omitted), 929; Pl.’s Supp. Brief at 2 (indicating that Wilton has no evidence as to item # 516-1002 and item # 2307-1053). Accordingly, Wilton’s claim to “festive article” classification of the two items must fail. Based on the existing record, both items were properly classified by Customs under HTSUS subheading 3924.10.50, as “Tableware, kitchenware, other household articles and toilet articles, of plastics: Tableware and kitchenware: Other.”

Birthday and Other Merchandise

Wilton brazenly contends that most of the bakeware at issue in this action is birthday merchandise classifiable as “festive articles” under heading 9505.

See

Pl.’s Exh. E-l. Wilton thus implicitly asserts that 21 of its bakeware items are both “closely associated with” and principally used for birthdays, such that their use at other times of the year would be “aberrant.”

See Park B. Smith,

347 F.3d at 927, 929 ; Pl.’s Brief at 20 (asserting that dinosaur, football, and doll motifs “would only be used in connection with a birthday celebration”). As to virtually all of those pieces of bakeware, however, Wilton’s claims simply strain credulity beyond all reason.

In fact, only one of the 21 pieces of “birthday” bakeware can reasonably be said to be “closely associated with” and principally used for birthdays.

See Park B. Smith,

347 F.3d at 927, 929 . Wilton’s Happy Birthday Pan (item # 2105-1073) is a round aluminum pan with a broadly-scalloped edge, and the phrase “HAPPY BIRTHDAY” in very large letters molded into the pan itself (so that the raised message covers virtually the entire face of the baked cake). As the Yearbook description of the item notes, “The message is loud and clear!”

See

Yearbook. The “Happy Birthday” greeting which is imprinted into the cake pan itself is — by definition— “closely associated” with birthdays, and would render the use of that cake pan at any other time patently “aberrant.”

*1343

Thus, under the criteria articulated by the Court of Appeals in

Midwest of Cannon Falls

and

Park B. Smith,

Wilton’s Happy Birthday Pan is properly classifiable under HTSUS subheading 9505.90.60, “Festive, carnival or other entertainment articles ...: Other: Other.”

In addition to its Happy Birthday Pan, Wilton also claims as “festive articles” related to birthdays its Stand-Up Cuddly Bear Pan (item # 2105-603), its Partysau-rus Pan (item #2105-1280), its Mini Ball Pan (item # 2105-1760), its Noah’s Ark Pan (item # 2105-2026), its Megasaurus Pan (item # 2105-2028), its Enchanted Castle Pan (item # 2105-2031), its Sports Utility Vehicle Pan (item # 2105-2034), its Rocking Horse Pan (item # 2105-2388), its Choo-Choo Train Pan (item # 2105-2861), its Mini Wonder Mold (item # 2105-3020), its Flower Power Cake Pan (item # 2105-3055), its Blue’s Clues Cake Pan (item #2105-3060), its A Bug’s Life Cake Pan (item # 2105-3203), its Big Bird With Banner Pan (item # 2105-3654), its Huggable Teddy Bear Pan (item #2105-4943), its First and Ten Football Pan (item # 2105-6504), its Sports Ball Pan (item #2105-6506), and its New Barbie Cake Pan with Facemaker (item #2105-9815, now item # 2105-8934 and item # 504-8934).

There is, however, nothing about any of those 18 pieces of bakeware that is “closely associated with” birthdays (or, for that matter, any other “festive” occasion).

See Park B. Smith,

347 F.3d at 927 (citation omitted). Indeed, Wilton sells the pans as either “Novelty Pans” or “Famous Character” pans, depending on the item. Moreover, there is nothing whatsoever about any of the bakeware that would limit its use to birthdays (or to any other “festive” occasion), or that would render “aberrant” its use on a routine basis throughout the year.

See Park B. Smith,

347 F.3d at 927, 929 .

*1344

Accordingly, under the criteria articulated by the Court of Appeals in

Midwest of Cannon Falls

and

Park B. Smith,

the Stand-Up Cuddly Bear Pan, the Partysau-rus Pan, the Mini Ball Pan, the Noah’s Ark Pan, the Megasaurus Pan, the Enchanted Castle Pan, the Sports Utility Vehicle Pan, the Choo-Choo Train Pan, the Mini Wonder Mold, the Flower Power Cake Pan, the Blue’s Clues Cake Pan, the A Bug’s Life Cake Pan, the Big Bird With Banner Pan, the Huggable Teddy Bear Pan, the First and Ten Football Pan, the Sports Ball Pan, and the New Barbie Cake Pan with Face-maker cannot be classified as “festive articles” under HTSUS heading 9505. All the items were properly classified by Customs under subheading 7615.19.70, as “Table, kitchen or other household articles ..., of aluminum; ...: Table, kitchen or other household articles ...: Other: Cooking and kitchen ware: Not enameled or glazed and not containing nonstick interior finishes: Other.”

In addition to the bakeware listed above, Wilton identifies another two cake pans as merchandise associated with birthdays as well as other events — the Yearbook Flashback! T-Shirt Pan (item #2105-2347), said to be associated with birthdays, graduations, and “sports cheers,” and the Horseshoe Pan (item # 2105-3254), said to be associated with birthdays, graduations, and “good luck” parties. The first item is a pan in the shape of a basic t-shirt, which Wilton depicts decorated variously as a plain t-shirt, a striped baseball jersey, a football jersey, an infant’s “onesie,” and a toddler’s overalls-style jumper. And, as its name suggests, the Horseshoe Pan is a pan in the shape of a basic horseshoe.

There is, however, nothing about either a t-shirt motif or a horseshoe motif that is “closely associated with” birthdays, or any other “festive” occasion.

See Park B. Smith,

347 F.3d at 927 (citation omitted). Moreover, there is nothing whatsoever about either piece of bakeware that would limit its use to birthdays or any other “festive” occasion, or that would render “aberrant” its use on a routine basis throughout the year.

See Park B. Smith,

347 F.3d at 927, 929 . Indeed, the two pans are sold simply as “Novelty Pans.” Accordingly, under the criteria articulated by the Court of Appeals in

Midwest of Cannon Falls

and

Park B. Smith,

neither the Yearbook Flashback! T-Shirt Pan nor the Horseshoe Pan is classifiable as a “festive article” under HTSUS heading 9505. Both items were properly classified by Customs under subheading 7615.19.70, as “Table, kitchen or other household articles ..., of aluminum; ...: Table, kitchen or other household articles ...: Other: Cooking and kitchen ware: Not enameled or glazed and not containing nonstick interior finishes: Other.”

IV.

Conclusion

For all the reasons set forth above, Plaintiffs Motion for Summary Judgment is granted in part and denied in part, and Defendant’s Cross-Motion for Summary Judgment is granted in part and denied in part.

Judgment will enter accordingly.

JUDGMENT

This action having been duly submitted for decision; and the Court, after due deliberation, having rendered a decision herein;

NOW, therefore, in conformity with said decision, it is

ORDERED, ADJUDGED, and DECREED that Plaintiffs Motion for Sum

*1345

mary Judgment is granted in part and denied in part; and it is further

ORDERED, ADJUDGED, and DECREED that Defendant’s Cross-Motion for Summary Judgment is granted in part and denied in part; and it is further

ORDERED, ADJUDGED, and DECREED that the U.S. Customs Service’s classification under subheadings 3924.10.20, 3924.10.50, and 3926.90.98 of the Harmonized Tariff Schedule of the United States (“HTSUS”) (1999) of the 9" Square Separator Plate (item # 302-1020), the 13" Square Separator Plate (item # 302-1063), the 7" Hexagon Separator Plate (item # 302-1705), the 10" Hexagon Separator Plate (item # 302-1748), the 13" Hexagon Separator Plate (item # 302-1764), the 16" Hexagon Separator Plate (item # 302-1799), the 17" Crystal-Look Separator Plate (item # 302-1810), the 7" Crystal-Look Separator Plate (item # 302-2013), the 9" Crystal-Look Separator Plate (item # 302-2035), the 11" Crystal-Look Separator Plate (item # 302-2051), the 13" Crystal-Look Separator Plate (item # 302-2078), the 16/é" Heart Separator Plate (item # 302-2118), the 8/é" Oval Separator Plate (item # 302-2130), the 11/&" Oval Separator Plate (item # 302-2131), the 14/é" Oval Separator Plate (item # 302-2132), the 14" Tier Stand Additional Cake Plate (item # 302-7940), the 16" Tier Stand Additional Cake Plate (item # 302-7967), the 18" Tier Stand Additional Cake Plate (item # 302-7983), the 6" Separator Plate — White (Replacement) (item # 302-9730), the 8" Separator Plate— White (Replacement) (item # 302-9749), the 10" Separator Plate — White (Replacement) (item # 302-9757), the 16" Separator Plate' — White (Replacement) (item # 302-9780), the 7" Crystal-Look Spiked Pillars (item # 303-2322), the 9" Crystal-Look Spiked Pillars (item # 303-2324), the 6)6" Tier Stand Additional Column (item # 303-7910), the 7 3/4" Tier Stand Additional Column (item # 304-5009), the Tall Tier Cake Stand Basic Set (item # 304-7915), and the Glue-On Plate Legs (item # 304-7930) is reversed; and it is further

ORDERED, ADJUDGED, and DECREED that Customs shall reliquidate the 9" Square Separator Plate (item # 302-1020), the 13" Square Separator Plate (item # 302-1063), the 7" Hexagon Separator Plate (item # 302-1705), the 10" Hexagon Separator Plate (item # 302-1748), the 13" Hexagon Separator Plate (item # 302-1764), the 16" Hexagon Separator Plate (item # 302-1799), the 17" Crystal-Look Separator Plate (item # 302-1810), the 7" Crystal-Look Separator Plate (item # 302-2013), the 9" Crystal-Look Separator Plate (item # 302-2035), the 11" Crystal-Look Separator Plate (item # 302-2051), the 13" Crystal-Look Separator Plate (item # 302-2078), the 16$" Heart Separator Plate (item # 302-2118), the 8/é" Oval Separator Plate (item # 302-2130), the 11/é" Oval Separator Plate (item # 302-2131), the 14^" Oval Separator Plate (item # 302-2132), the 14" Tier Stand Additional Cake Plate (item # 302-7940), the 16" Tier Stand Additional Cake Plate (item # 302-7967), the 18" Tier Stand Additional Cake Plate (item # 302-7983), the 6" Separator Plate — White (Replacement) (item # 302-9730), the 8" Separator Plate — White (Replacement) (item # 302-9749), the 10" Separator Plate— White (Replacement) (item # 302-9757), the 16" Separator Plate — White (Replacement) (item # 302-9780), the 7" Crystal-Look Spiked Pillars (item # 303-2322), the 9" Crystal-Look Spiked Pillars (item # 303-2324), the

&H'

Tier Stand Additional Column (item # 303-7910), the 7 3/4" Tier Stand Additional Column (item # 304-5009), the Tall Tier Cake Stand Basic Set (item # 304-7915), and the Glue-On Plate Legs (item # 304-7930) under HTSUS subheading 9505.90.40, duty-free, with all excess duties to be refunded to Plaintiff

*1346

with interest as provided by law, and judgment is hereby entered for Plaintiff as to those items; and it is further

ORDERED, ADJUDGED, and DECREED that Customs’ classification of the Cherub Place Card Holders (item # 1001-9374) under HTSUS subheadings 3924.10.20 and 3926.90.98 is reversed; and it is further

ORDERED, ADJUDGED, and DECREED that Customs shall reliquidate the Cherub Place Card Holders (item # 1001-9374) under HTSUS subheading 9505.90.40, duty-free, with all excess duties to be refunded to Plaintiff with interest as provided by law, and judgment is hereby entered for Plaintiff as to that item; and it is further

ORDERED, ADJUDGED, and DECREED that Customs’ classification of the Script Message Press Set (item #2104-2061), the Block Letter Press Set (item # 2104-2077), and the All-Occasion Script Message Press Set (item # 2104-2090) under Chapter 39 of the HTSUS is reversed; and it is further

ORDERED, ADJUDGED, and DECREED that Customs shall reliquidate the Script Message Press Set (item # 2104-2061), the Block Letter Press Set (item #2104-2077), and the All-Occasion Script Message Press Set (item # 2104-2090) under HTSUS subheading 9505.90.40, duty-free, with all excess duties to be refunded to Plaintiff with interest as provided by law, and judgment is hereby entered for Plaintiff as to those items; and it is further

ORDERED, ADJUDGED, and DECREED that Customs’ classification of the Snowman Pan (item # 2105-803), the Smiling Santa Pan (item # 2105-3310), and the Poinsettia Pan (item # 2105-3312) under HTSUS subheading 7615.19.70 is reversed; and it is further

ORDERED, ADJUDGED, and DECREED that Customs shall reliquidate the Snowman Pan (item # 2105-803), the Smiling Santa Pan (item # 2105-3310), and the Poinsettia Pan (item # 2105-3312) under HTSUS subheading 9505.10.50, duty-free, with all excess duties to be refunded to Plaintiff with interest as provided by law, and judgment is hereby entered for Plaintiff as to those items; and it is further

ORDERED, ADJUDGED, and DECREED that Customs’ classification of the Christmas Cookie Collection Set (item #2304-802); the Christmas tree cookie cutters, the Christmas stocking cookie cutters, and the angel cookie cutters from the 144 ct. North Pole Mini Cookie Cutter CDU [Counter Display Unit] (item # 2301-1036); and the Christmas tree cookie stamps and the bells with holly cookie stamps from the 48 ct. Jolly Stamps! Cookie Stamp CDU [Counter Display Unit] (item #2307-1001) under HTSUS subheading 3924.10.50 is reversed; and it is further

ORDERED, ADJUDGED, and DECREED that Customs shall reliquidate the Christmas Cookie Collection Set (item #2304-802); the Christmas tree cookie cutters, the Christmas stocking cookie cutters, and the angel cookie cutters from the 144 ct. North Pole Mini Cookie Cutter CDU [Counter Display Unit] (item # 2301-1036); and the Christmas tree cookie stamps and the bells "with holly cookie stamps from the 48 ct. Jolly Stamps! Cookie Stamp CDU [Counter Display Unit] (item #2307-1001) under HTSUS subheading 9505.10.50, duty-free, with all excess duties to be refunded to Plaintiff with interest as provided by law, and judgment is hereby entered for Plaintiff as to those items; and it is further

ORDERED, ADJUDGED, and DECREED that Customs’ classification of the

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Treeliteful Pan (item # 2105^425) and the Holiday House Pan (item # 2105-3311) under HTSUS subheading 7615.19.70 is sustained, and judgment is hereby entered for Defendant as to those items; and it is further

ORDERED, ADJUDGED, and DECREED that Customs’ classification of the Star Nesting Perimeter Cutter Set (item #2304-111), the Gingerbread Perimeter Cutter Set (item #2304-121), the snowman and snowflake cookie cutters from the 144 ct. North Pole Mini Cookie Cutter CDU [Counter Display Unit] (item # 2301-1036), the gingerbread man stamps from the 48 ct. Jolly Stamps! Cookie Stamp CDU [Counter Display Unit] (item #2307-1001), and item #516-1007 (a Christmas cookie cutter or cookie stamp) under HTSUS subheading 3924.10.50 is sustained, and judgment is hereby entered for Defendant as to those items; and it is further

ORDERED, ADJUDGED, and DECREED that Customs’ classification of the Heart Tart Singles! pan (item # 2105-1139), the Heart Pan Set (item # 2105-2131), and the Heart Giant Cookie Pan (item # 2105-6203) under HTSUS subheading 7615.19.70 is sustained, and judgment is hereby entered for Defendant as to those items; and it is further

ORDERED, ADJUDGED, and DECREED that Customs’ classification of the Heart Springform Pan (item # 2105-2122) under HTSUS subheading 7323.99.70 is sustained, and judgment is hereby entered for Defendant as to that item; and it is further

ORDERED, ADJUDGED, and DECREED that Customs’ classification of the Heart Comfort Grip [Cookie] Cutter (item # 2310-616) under HTSUS subheading 7323.93.00 is sustained, and judgment is hereby entered for Defendant as to that item; and it is further

ORDERED, ADJUDGED, and DECREED that Customs’ classification of the Mini Pumpkin Pan (item # 2105-1499), the Jack-O-Lantern Giant Cookie Pan (item # 2105-6207), and the Monster Party Pan (item # 2105-2039) under HTSUS subheading 7615.19.70 is reversed; and it is further

ORDERED, ADJUDGED, and DECREED that Customs shall reliquidate the Mini Pumpkin Pan (item # 2105-1499), the Jack-O-Lantern Giant Cookie Pan (item # 2105-6207), and the Monster Party Pan (item #2105-2039) under HTSUS subheading 9505.90.60, duty-free, with all excess duties to be refunded to Plaintiff with interest as provided by law, and judgment is hereby entered for Plaintiff as to those items; and it is further

ORDERED, ADJUDGED, and DECREED that Customs’ classification of the Pumpkin Cookie Stamp (item # 2307-1003); the Spider Cookie Stamp (item # 2307-1004); the Bat Cookie Stamp (item #2307-1005); the Ghost Cookie Stamp (item #2307-1013); all cookie cutters— that is, the mini cookie cutters in the shapes of a bat, a ghost, two different jack-o-lanterns, and the word “BOO” — in the Halloween Mini [Cookie] Cutter CDU [Counter Display Unit] (96 ct.) (item # 2301-1035); and the Spooky Cookie Cutter Set (item # 2304-9210) under HTSUS subheading 3924.10.50 is reversed; and it is further

ORDERED, ADJUDGED, and DECREED that Customs shall reliquidate the Pumpkin Cookie Stamp (item # 2307-1003); the Spider Cookie Stamp (item # 2307-1004); the Bat Cookie Stamp (item #2307-1005); the Ghost Cookie Stamp (item #2307-1013); all cookie cutters in the Halloween Mini [Cookie] Cutter CDU [Counter Display Unit] (96 ct.) (item # 2301-1035); and the Spooky Cookie Cutter Set (item # 2304-9210) under HTSUS

*1348

subheading 9505.90.60, duty-free, with-all excess duties to be refunded to Plaintiff with interest as provided by law, and judg-, ment is hereby entered for Plaintiff as to those items; and it is further

ORDERED, ADJUDGED, and DECREED that Customs’ classification of the Jaek-O-Lantern Nesting [Cookie] Cutter Set (item # 2303-191), the Scarecrow Cookie Stamp (item # 2307-1036), the Maple Leaf Cookie Stamp (item # 2307-1037), item # 516-1002 (a cookie cutter or cookie stamp), and item #2307-1053 (a cookie cutter or a cookie stamp) under HTSUS subheading 3924.10.50 is sustained, and judgment is hereby entered for Defendant' as to those items; and it is further

ORDERED, ADJUDGED, and DECREED that Customs’ classification of the Pumpkin Pie Pan (item #2105-3970) under HTSUS subheading 7615.19.70 is sustained, and judgment is hereby entered for Defendant as to that item; and it is further

ORDERED, ADJUDGED, and DECREED that Customs’ classification of the Happy Birthday Pan (item #2105-1073) under HTSUS subheading 7615.19.70 is reversed; and it is further

ORDERED, ADJUDGED, and DECREED that Customs shall reliquidate the Happy Birthday Pan (item #2105-1073) under HTSUS subheading 9505.90.60, duty-free, with all excess duties to be refunded to Plaintiff with interest as provided by law, and judgment is hereby entered for Plaintiff as to that item; and it is further

ORDERED, ADJUDGED, and DECREED that Customs’ classification of the Stand-Up Cuddly Bear Pan (item # 2105-603), the Partysaurus Pan (item #2105-1280), the Mini Ball Pan (item #2105-1760), the Noah’s Ark Pan (item #2105-2026), the Megasaurus Pan (item #2105-2028), the Enchanted Castle Pan (item #2105-2031), the Sports Utility Vehicle Pan (item # 2105-2034), the Rocking Horse Pan (item # 2105-2388), the Choo-Choo Train Pan (item #2105-2861), the Mini Wonder Mold (item # 2105-3020), the Flower Power Cake Pan (item #2105-3055), the Blue’s Clues Cake Pan (item # 2105-3060), the A Bug’s Life Cake Pan (item #2105-3203), the Big Bird With Banner Pan (item # 2105-3654), the Huggable Teddy Bear Pan (item # 2105-4943), the First and Ten Football Pan (item #2105-6504), the Sports Ball Pan (item # 2105-6506), the New Barbie Cake Pan with Facemaker (item #2105-9815), the Yearbook Flashback! T-Shirt Pan (item # 2105-2347), and the Horseshoe Pan (item #2105-3254) under HTSUS subheading 7615.19.70 is sustained, and judgment is hereby entered for Defendant as to those items; and it is further.

ORDERED, ADJUDGED, and DECREED that Customs shall reliquidate all items listed in Schedule A to the parties’ Stipulation filed in this matter on October 16, 2002, in accordance with the terms of that Stipulation (a copy of which is attached hereto), with all excess duties to be refunded to Plaintiff with interest as provided by law.

STIPULATION

Plaintiff, Wilton Industries, Inc., and defendant, the United States, through their respective counsel, stipulate that the merchandise set forth on the attached Schedule A is correctly classified under the subheadings of Heading 9505 of the Harmonized Tariff Schedules of the United States stated thereon, free of duty. The parties also agree to the following:

1. The protests involved here were filed and the action involved here was commenced within the time provided by law, and all liquidated duties, charges or exac-tions were paid prior to the filing of the summons.

2. At , the conclusion of this action, this stipulation will be incorporated into the final judgment of the Court, and the Port Director of Customs at the Port of Chicago will be directed to reliquidate the entries

*1349

containing the stipulable merchandise in accordance with this stipulation.

3. All refunds payable by reason of the classification of the articles in the manner set forth on the attached Schedule A are to be paid with any interest provided for by law.

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*1351

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*1353

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. The parties have agreed that their Stipulation is to be incorporated into the Judgment in this action. All articles subject to the Stipulation are classified as "festive articles” under one of two subheadings of HTSUS heading 9505.

See

Stipulation.

. All citations are to the 1999 version of the HTSUS (including all Section and Chapter Notes, and the General Rules of Interpretation). In addition, except as otherwise noted, all citations to the Explanatory Notes are to the 1996 version, the relevant provisions of which were in effect in 1999.

.HTSUS heading 3924 covers "Tableware, kitchenware, other household articles and toilet articles, of plastics,” while heading 3926 covers “Other articles of plastics and articles of other materials of headings 3901 to 3914.” Heading 7615 covers "Table, kitchen or other household articles and parts thereof, of aluminum; pot scourers and scouring or polishing pads, gloves and the like, of aluminum; sanitary ware and parts thereof, of aluminum.” And heading 7323 covers "Table, kitchen or other household articles and parts thereof, of iron or steel; iron or steel wool; pot scourers and scouring or polishing pads, gloves and the like, of iron or steel.”

. According to Wilton’s website, the Illinois-based company markets a wide range of products. Wilton's Online Store includes a Baby Shop, a Bakeware Shop, Books & Videos, a Cake Decorating Shop, a Candy Shop, a Cookie Shop, a Party Shop, a Seasonal Shop, a Theme & Character Shop, a Wedding Shop, and Stationery.

Among other things, Wilton’s website also offers tips on cake decorating techniques, suggested party ideas, recommended recipes and projects, details about contests, information about Wilton’s own School of Cake Decorating & Confectionary Art (as well as information on “Wilton Method” classes at locations nationwide), and an online "Discussion Forum” devoted to the, exchange of ideas on cake decorating and similar arts.

. Except as otherwise noted, the information in- this section is drawn generally from the Affirmation filed by Wilton, from the Statements of Material Facts Not in Dispute filed by the parties, and from the pages printed from Wilton's website and the pages from Wilton's Yearbook catalog which Wilton filed ■ in support of its motion.

Throughout the course of litigation, the Government has criticized the quantum, the quality, and the timing of the submission of Wilton's evidence. Wilton, in turn, has criticized the Government for proffering no evidence of its own (and, indeed, apparently conducting little or no discovery in this matter).

See

Pl.’s Supp. Brief at 11-12; Pl.'s Supp. Reply Brief at 5-6.

In Defendant’s Response to Plaintiff’s Statement of Facts, for example, the Government emphasized that the exhibits filed with Wilton's opening brief did not include depictions of some of the,bakeware and some of the cookie cutters and cookie stamps at issue (although the Government failed to specify which were missing).

See

Def.’s Response to Pl.’s Statement of Facts ¶¶ 8-9;

see also

Def.’s Reply Brief at 10 n. 3. The Government similarly criticized Wilton for not filing affidavits in support of its case.

See

Def.’s Brief at 3, 21; Def.'s Reply Brief at 9.

When Wilton later sought to cure the deficiencies in its exhibits, however, the Government criticized Wilton's submissions as “belated.”

See, e.g.,

Def.'s Supp. Reply Brief at 1-2; Letter to Court from Counsel for Defendant to Court (May 16, 2007). And the Government has argued that the affirmation that Wilton filed should be stricken from the record on various grounds.

See generally

Def.’s Reply Brief at 9-12.

To, be sure, Wilton is obligated to submit proof documenting the nature of its merchandise; and, to be sure, it largely defaulted on that obligation until relatively recently. It is not the job of (he court or opposing counsel to police the completeness of a party’s evidence, and then notify that party of any deficiencies. The bottom line, however, is that the Government has not even alleged — much less demonstrated — any actual prejudice as a result of Wilton’s belated submissions in this action.

The Government's objections to the affirmation that Wilton filed are also wide of the mark. Accordingly, the Government's motion to strike must be denied. The affirmation

"bare-bones,” to put it charitably. But the Government’s principal criticisms are that the affirmation is undated, and that the affiant was not in Wilton’s employ at the time of the events at issue here.

See generally

Def.’s Re

*1298

ply Brief at 9-12. As a general matter, however, "the absence of the formal requirements of a jurat in a sworn affidavit does not invalidate the statements [in the affidavit] or render them inadmissible.”

Peters v. United States,

187 Ct.Cl. 63 , 408 F.2d 719, 722 (1969)

(quoted in Pfeil v. Rogers,

757 F.2d 850, 859 (7th Cir.1985)). Thus, in the interests of justice, trial courts are admonished not to be “unnecessarily hypertechnical and overly harsh on a party who unintentionally fails to make certain that all technical, non-substantive requirements of execution are satisfied.”

Pfeil,

757 F.2d at 859 (holding that district court erred in rejecting affidavits for lack of notarial seal); 11 James Wm. Moore

et al.,

Moore’s Federal Practice § 56.14[l][b] (3 d ed.2006). Certainly the Government has not suggested that the absence of a date on Wilton's affirmation casts doubt on the truth of any specific statement therein.

See generally

Pl.'s Supp. Brief at 12-13.

Moreover, the mere fact that the affiant was not in the employ of a company at the time of specific events does not

ipso facto

mean that the affiant lacks the personal knowledge required to attest to facts that predate his or her tenure at the company.

See

Def.'s Reply Brief at 9-10 (arguing that "there is no indication that [the affiant] has ever seen the merchandise at issue, which was imported approximately three years prior to her assuming the position of Vice President of Wilton”). "[Corporate officers are presumed to have personal knowledge of acts of their corporation.”

See

11 Moore's Federal Practice § 56.14[l][c], And it is clear beyond cavil that "[p]ersonal knowledge ... does not require contemporaneous knowledge.”

Id. (citing, inter alia, Dalton v. FDIC,

987 F.2d 1216, 1223 (5th Cir.1993) (affidavit of corporate officer was not defective simply because he learned of transaction after it had occurred)). Here, the Government has "produced no evidence to show that [Wilton’s affiant] did not know what [s]he was talking about.”

Zayre Corp. v. S.M. & R. Co.,

882 F.2d 1145, 1151 (7th Cir.1989). Nor has the Government "produced] any evidence to specifically cast doubt on [the affiant’s] credibility.”

Id.; see generally

Pl.’s Supp. Brief at 12-13.

At the eleventh hour (in the course of supplemental briefing), the parties have traded barbs as to matters such as their respective evidentiary burdens and the effect of the presumption of correctness.

See

28 U.S.C. § 2639 (a)(1) (2000) (presumption of correctness). Wilton argues that "once the plaintiff has provided a

prima facie

case, the government has an obligation to provide its own evidentiary support for its claims that plaintiff's merchandise is not entitled to classification under Heading 9505.”

See generally

Pl.'s Supp. Brief at 9-12. Wilton emphasizes: “[The Government] has not provided any factual evidence that the subject merchandise should not be classified under Heading 9505. It has simply criticized every aspect of [Wilton's] evidence and stated that whatever has been provided is not enough."

See

Pl.'s Supp. Reply Brief at 5-6.

The Government argues — for the first time in its Supplemental Brief — that it "is not required to produce evidence,” because, it asserts, "Wilton has failed to meet its burden of contradicting Customs' presumptively correct factual finding that the imported articles are not 'festive articles.’ "

See

Def.’s Supp. Brief at 15-16

(quoting Saab Cars USA, Inc. v. United States,

434 F.3d 1359, 1368 (Fed.Cir.2006)).

In briefing these points, however, neither party has adequately addressed the interplay of all relevant principles and doctrines. For example, the Government fails to acknowledge that the parties are in agreement that no material facts are in dispute.

See, e.g.,

Pl.'s Brief at 13; Def.'s Brief at 2, 4, 6. And the statutory presumption of correctness attaches only to Customs’ factual findings. Thus, where — as here — -there are no disputes of material fact, the presumption of correctness has no practical effect.

See, e.g., Universal Elecs., Inc. v. United States,

112 F.3d 488, 492 (Fed.Cir.1997)

(quoting Marbury v. Madison,

1 Cranch 137 , 5 U.S. 137, 177 , 2 L.Ed. 60 (1803));

id. (citing Goodman Mfg., L.P. v. United States,

69 F.3d 505, 508 (Fed.Cir.1995)) ("[W]e conclude that although the presumption of correctness applies to the ultimate classification decision, [plaintiff] properly interprets

Goodman

as standing for the proposition that, as a practical matter, the presumption carries no force as to questions of law.”).

As Wilton emphasizes, the Government similarly fails to acknowledge that it has cross-moved for summary judgment, and ignores the implications of that fact.

See

PL's Supp. Reply Brief at 6. It is one thing for a party to defeat a movant's motion for summary judgment; it is something else entirely to prevail as cross-movant.

Finally,

Saab

— on which the Government seeks to rely heavily — was not a classification case, and is thus distinguishable from the case at bar.

See Saab,

434 F.3d at 1368 . In

*1299

classification cases, the Court has an indepén-dent obligation under

Jarvis Clark

to ascertain the proper classification of merchandise in dispute.

See Jarvis Clark Co. v. United States,

733 F.2d 873, 876 (Fed.Cir.1984). And, as officers of the court, counsel have a duty to assist the Court in that function. Even if Wilton had not made out a

prima facie

case for "festive articles” classification of any of its merchandise, neither party has argued that the Court would somehow be relieved of its

Jarvis Clark

obligation (and that the Government could somehow, in essence, prevail on its cross-motion by default).

Fortunately, there is no need to-definitively resolve such issues here. Notwithstanding their posturing, the parties have steadfastly maintained throughout the course of litigation — despite countless opportunities to indicate to the contrary (before, during, and after oral argument) — that there are no disputes of material fact which would preclude summary judgment in favor of either party. And, although the existing evidentiary record is thin on a number of points, and does not afford the pristine basis for summary judgment that would be optimal (and which a court is certainly entitled to expect), it is also abundantly clear that a trial would serve no real purpose in this matter.

See, e.g.,

Pl.’s Brief at 13 (stating that "[tjhere is no genuine dispute of material fact”); Def.’s Brief at 2 (noting that "[t]here is no dispute between the parties regarding what the merchandise is or how it is actually used”), 4 (“Summary judgment is proper as there are no material facts in dispute.”), 6 (“Inasmuch as the parties agree as to what the merchandise is and how it is used, this action is ripe for summary judgment.”).

. Multi-tiered wedding-type cakes are created using one of two methods — the "stacked” method (where one tier is stacked directly on top of the tier below it), or the "pillar construction” method (where a tier is held aloft— above the tier below it — through the use of pillars or columns, in combination with separator plates).

. Thus, for example, pillars and/or columns are used to separate the tiers of a multi-tiered cake. Pillars are offered in styles including "Crystal-Look,” "Crystal-Look Spiked,” "Grecian,” “Grecian Spiked,” "Arched,” "Dancing Cupid,” “Swan,” and "Hidden.” Similarly, columns are offered in "Lattice” and "Roman” styles.

All pillars and columns are available in a range of heights, and are specifically designed to coordinate with various styles of cake separator plates, including "Crystal-Look [Separator] Plates” and other wedding merchandise from Wilton's "Ciystal-Look” line (for use with Crystal-Look and Crystal-Look Spiked Pillars), and "Decorator Preferred,” "Baker's Best,” "Square,” "Heart,” “Oval,” and "Hexagon” separator plates (for use with other styles of pillars, as well as all columns).

.As Wilton pointedly observes, much of the merchandise that is the subject of the parties' Stipulation consists of wedding cake separator plates, columns, and pillars similar to those still at issue. According to Wilton, there is "no reasonable basis” for distinguishing between the merchandise to which the parties have stipulated and that which remains in dispute.

See

Stipulation; Pl.’s Brief at 21. And the parties have agreed that all merchandise subject to the Stipulation should be classified as "festive articles” under heading 9505.

See

Pl.’s Brief at 21; Pl.'s Reply Brief at 2; Pl.’s Supp. Reply Brief at 4-5.

But see

Def.'s Brief at 17 n. 10, 18 n. 11; Def.’s Supp. Brief at 8-9.

. Customs liquidated different entries of the exact same merchandise under two different tariff provisions. Contrary to the Government’s claim

(see

Def.’s Brief at 29), the different classifications cannot be attributed to differences in "the material of which the article was comprised.”

. The parties agree that the cake press sets were liquidated under Chapter 39 of the HTSUS. However, there is a discrepancy in the record as to the precise heading and subheading under which the merchandise was liquidated.

According to Wilton, Customs liquidated the cake press sets as "Tableware, kitchenware, other household articles and toilet articles, of plastics: Tableware and kitchenware:

*1302

Other,” under HTSUS subheading 3924.10.50.

See, e.g.,

PL's Brief at 7; PL’s Exh. G—1; Pl.'s Amended Exh. G-l. In contrast, the Government contends that the cake press sets were liquidated under subheading 3926.90.98, as “Other articles of plastics ...: Other: Other.”

See, e.g.,

Def.'s Brief at 3, 29.

. Section and Chapter Notes are not optional interpretive rules, but — instead—are statu

*1303

tory law, codified at 19 U.S.C. § 1202 .

See Park B. Smith, Ltd. v. United States,

347 F.3d 922, 926 (Fed.Cir.2003)

(citing Libas, Ltd. v. United States,

193 F.3d 1361, 1364 (Fed.Cir.1999)).

. Unlike Section and Chapter Notes

(see

n. 11,

supra),

Explanatory Notes are not binding.

See Park B. Smith,

347 F.3d at 929 n. 3

(citing JVC Co. of America v. United States,

234 F.3d 1348, 1352 (Fed.Cir.2000)). They may, however, be consulted for guidance and “are generally indicative of the proper interpretation of the various HTSUS provisions.”

JVC,

234 F.3d at 1352

(quoted in Park B. Smith,

347 F.3d at 929 n. 3).

. Although the Government’s principal argument focuses on the "functional” or "utilitarian” nature of the merchandise, its briefs are not models of clarity. They are laced with a number of scattered, occasional, casual allusions to other concepts such as whether the merchandise at issue is "displayed” (apparently in an "ornamental” sense), whether the merchandise has "entertainment” value, and similar issues.' The Government’s briefs do nothing whatsoever to develop those arguments in any coherent fashion, however; and, indeed, the Government often seems to be using concepts interchangeably. Such scattered, casual, offhand references cannot give rise to an obligation — on the part of either opposing counsel or the Court — to flesh out and then respond to a party’s barest intimations.

In the interest of completeness, the Government's briefs have been "mined” for such intimations, which are collected and addressed in summary fashion here. However, it is far from clear that the Government’s briefs filed in this forum should suffice to preserve its rights. Any attempt to raise such issues on appeal should meet with skepticism, and merits very close scrutiny.

As an initial matter, both parties devote ink to whether merchandise classifiable as "festive articles” under heading 9505 must be both "used”

and

"displayed” in connection with a "festive” occasion. The Government repeatedly insists that merchandise must be "used

and

displayed.” See, e.g., Def.'s Brief at 19 (asserting that

"Midwest

and

Smith

involved articles which were themselves displayed

and

used”); Def.’s Reply Brief at 2

*1306

(asserting that "festive articles" classification requires that “the article must be displayed and used” in connection with "festive” occasion), 7-8 (same); Def.’s Supp. Brief at 2 (same). However, in

Park B. Smith,

the Court of Appeals has spoken clearly and unequivocally to the contrary, explaining that "festive article” classification "requires that the article satisfy two criteria: (1) it must be closely associated with a festive occasion and (2) the article is

used or displayed

principally during that festive occasion.”

Park B. Smith,

347 F.3d at 927 (emphasis added)

(citing Midwest of Cannon Falls,

122 F.3d at 1429 );

see also

Pl.’s Reply Brief at 13 (noting that

Park B. Smith

"states that festive items may be displayed

used during a festive occasion”).

In any event, contrary to the Government’s implications, there is — as a practical matter— no apparent discernible, meaningful "bright line” distinction between "display” and "use.” In several places, the Government suggests that "festive articles” must be, in essence, "decorations” — apparently reading the term "display” in an "ornamental” sense.

See, e.g.,

Def.’s Brief at 19 (asserting that

"Midwest

and

Smith

involved articles which were themselves displayed

and

used as

decorations

”) (second emphasis added); Def.’s Reply Brief at 5 (arguing that Wilton bake-ware cannot be classified as "festive articles” because it is not "decorations”); Def.’s Supp. Brief at 7 (arguing that bakeware cannot be classified as "festive articles” because a "baking pan is not itself used as decoration”).

But see

Pl.’s Reply Brief at 13 n. 6 (disputing Government's contention that "display” means "ornamental” display, and arguing,

inter alia,

that "[e]ven if both use

and

display were required ..., the display may be nothing more than that which is incidental to the use of the article. It need not be a decorative use ...”).

The Government claims that there is no evidence that Wilton's bakeware is used as “decorations.”

See, e.g.,

Def.’s Brief at 20 (asserting that bakeware “is

not

used as decorations,” and that there is "absolutely no evidence that anyone would decorate a home with baking pans, cookie cutters, cake message presses, or any other cooking tools during any holiday”); Def.’s Supp. Brief at 7 (asserting that "the baking pan is not itself used as decoration and there is absolutely no evidence that such articles are displayed”).

The Government is simply wrong on the record. Contrary to the Government’s claims, text from Wilton's Yearbook catalog and other promotional literature filed in this action emphasizes a range of "decorative” uses for Wilton’s bakeware, cookie cutters, and cookie stamps. Thus, for example, the description of the Jolly Shapes Cookie Cutter Set (item #2308-1201) emphasizes: "Our metal [cookie] cutters look great with their bright colors and glossy enamel finish. Four shapes are

perfect for hanging on the [Christmas] tree

until your next cookie-baking bash.” (Emphasis added.) To the same end is the description of the Spooky Shapes Cookie Cutter Set (item # 2308-1200): "Our metal [cookie] cutters

will look great in your kitchen

with their glossy enamel finish. Four favorite shapes are

perfect for hanging on the wall

until your next cookie baking bash.” (Emphasis added.) Similarly, the description of the Star Nesting Perimeter Cutter Set (item # 2304-111) advertises: ”[R]emember all the fun ways to use our [cookie] cutters — for bread shapes, stencils,

sun catchers,

and so much more.” (Emphasis added.) And the description of the Gingerbread Boy Cookie Mold (item #2306-1019) emphasizes: "Our finely detailed mold helps you and the family create beautifully-sculpted cookies with ease.... Molds are

great to hang for a festive decoration all season long."

(Emphasis added.)

See

Pl.’s Exhs.,

passim.

Moreover, it is a reasonably safe assumption that additional evidence would have been proffered on this point had the Government briefed the matter adequately, so as to put Wilton on proper notice. Any complaints by the Government about the state of the evidentiary record must therefore fall on deaf ears.

Not only is the Government wrong about the record evidence — but, more importantly, the Government is wrong on the law. There is simply nothing in the Explanatory Notes to heading 9505 or in the HTSUS itself — -just as there is nothing in either

Midwest of Cannon Falls

Park B. Smith

—that requires that "festive articles” must, by definition, be "decorative” (at least in the sense that the Government appears to be using that term). The Explanatory Notes plainly envision classification under heading 9505 of not only

"[decorations

such as festoons, garlands ...,” but also

non-decorative

items as well, including— but not limited to — other (non-decorative) types of "[a]rticles traditionally used at Christmas festivities.”

See

Explanatory Notes, Heading 9505, HTSUS. Indeed, the Explanatory Notes specifically list "Christmas crackers” as one examplar of "festive articles,” with no implication that the crackers must be used to "decorate” a household or otherwise "displayed” before being pulled.

*1307

See

Explanatory Notes, Heading 9505, HTSUS (providing for classification of “Christmas crackers” as “festive articles” under heading 9505); Wikipedia, Christmas cracker, http://en.wikipedia.org/wiki/ Christmas_cracker (as of June 8, 2007) (explaining that Christmas crackers "are an integral part of Christmas celebrations in the United Kingdom," among other places; "A cracker consists of a cardboard tube wrapped in a brightly decorated twist of paper ... [which is] pulled by two people, and, much in the manner of a wishbone, ... splits unevenly. The split is accompanied by a small bang produced by the effect of friction on a chemically impregnated card strip (similar to that used in a cap gun) ... Typically the[] contents [of the Christmas cracker] are a col-oured paper hat or crown; a small toy or other trinket and a motto, a joke or piece of trivia on a small strip of paper. Crackers are often pulled after Christmas dinner or at parties.”)

The Government also makes the vague claim that "the use of cooking tools to bake cakes or make cookies is not the kind of ‘use’ contemplated by the courts in

Midwest

and

Smith.” See

Def.'s Reply Brief at 8. But the Government wholly fails to elucidate that con-clusory assertion, except to argue that "[t]he cooking tools imported by Wilton are clearly used

in preparation for,

not in celebration [of], nor for entertainment on a joyous holiday.”

Id.

(emphasis added).

That argument intimates the existence of some stringent temporal restriction on "festive articles” that finds no basis in the HTSUS, the Explanatory Notes, or the law of

Midwest of Cannon Falls

and

Park B. Smith.

For example, it is clear from the subheadings of heading 9505 of the HTSUS and from the existing caselaw that “Christmas ornaments” are classifiable as "festive articles” under heading 9505.

See

Subheading 9505.10, HTSUS (providing for classification of “Christmas ornaments”);

Midwest of Cannon Falls,

122 F.3d at 1427 (discussing classification of "Christmas ornaments” under heading 9505). There is no requirement that such ornaments be put out only on Christmas Eve and, in turn, returned to storage or disposed of on December 26. So too, it would defy logic and common sense to rule that — to the extent that

making

Christmas cookies is typically an activity that families enjoy in the days leading up to the actual holiday — Christmas cookie cutters are

per se

excluded from the scope of heading 9505 because they are used "in preparation for” the actual holiday. The distinction that the Government seeks to draw is much too simplistic.

Indeed, in questions sent to the parties in preparation for oral argument, the Court specifically inquired: "In fact, isn’t the use of Christmas cookie cutters to make Christmas 'cut out’ cookies a holiday tradition? Isn't the process of making Christmas cookies itself thus a

part

of the holiday festivities, rather than mere

preparation

for the festivities?” The Government never directly responded to that point.

Whether treated as merchandise used "in preparation for,” used "in celebration of,” or used “for entertainment on” a holiday, the Government has failed to explain how the temporal use of Wilton’s Christmas cookie cutters, for example, differs fundamentally from that of "festive articles” such as Christmas ornaments

(see

subheading 9505.10, HTSUS), nativity scenes (see subheading 9505.10.30, HTSUS), festive table linens (see

Park B.

Smith), and nutcrackers (see

Midwest of Canon Falls

} — all of which are typically used and/or displayed "in preparation for” (that is, in the days leading up to) Christmas itself.

Finally, the Government suggests that Wilton’s bakeware, cookie cutters, and cookie stamps cannot be classified as "festive articles” because they lack "entertainment” value.

See, e.g.,

Def.'s Reply Brief at 8 (arguing that merchandise at issue is not used “in celebration” of or "for entertainment on a joyous holiday”); Def.’s Supp. Brief at 6 (asserting that merchandise at issue does not "share the toy-like amusement qualities of the articles expressly provided for in subheading 9505.90”). The Court of Appeals met this argument head-on in

Midwest of Cannon Falls ,

and made short work of it.

See generally Midwest of Cannon Falls,

122 F.3d at 1427 (rejecting Government's argument that merchandise in that action was not classifiable under heading 9505 because it was not used for "entertainment,” or for "amusement or merriment”).

Midwest of Cannon Falls ,

the Court of Appeals noted that it was “somewhat unclear what the government means by articles for 'entertainment, amusement or merriment’ because the imported items (e.g., various Santa figures) are at least as 'entertaining’ as Christmas

tree

ornaments that the government admits belong under heading 9505.”

Id.

The Court of Appeals emphasized that “even under the government's own argument, heading 9505 covers a range of products spanning Christmas tree ornaments to nativity scenes.”

*1308

Id.

The Court of Appeals concluded that the merchandise at issue in that action was "at least as 'entertaining' as the nativity scenes” expressly covered by one of the subheadings of heading 9505.

Id.

In sum, even if “festive articles” must have "entertainment” value (as the Government continues to insist), the “entertainment” threshold is nowhere near as high as the Government suggests.

If articles such as nativity scenes and the festive table linens of

Park B. Smith

are deemed to provide "entertainment,” there can be no serious dispute as to the “entertainment” value of Christmas cookie cutters and other similar bakeware. As discussed in the course of oral argument in this matter, for example, the making of Christmas cookies is a cherished holiday rite in many U.S. households, for both the young and the young-at heart — a tradition steeped in warm memories of Christmases past, and a tradition passed down from one generation to the next in kitchens all across the country.

The Government’s folly here may lie, at least in part, in its analytical proclivity to conflate the ultimate

product

of the baking process (cookies or other baked goods) with the

baking process itself

— that is, the "use” of the merchandise actually at issue here.

See, e.g.,

Def.’s Brief at 20 (arguing that "cake pans, cookie cutters, presses and other cooking tools are not themselves used to celebrate any holiday,” and that it is

the cookies and the cakes

that are so used).

As Wilton’s Yearbook catalog aptly observes, however, at least in the eyes of children, the

making

of cookies — that is, the use of cookie cutters and cookie stamps — is as much fun as the

eating. See

Pl.’s Exh. (describing Star Nesting Perimeter Cutter Set (item #2304-111)—“With our shaped [cookie] cutters,

the making is as much fun as the eating!

Child-safe design means

kids can have a great time helping.")

(emphases added); Pl.’s Protest at 14 (noting that "[b]aking holiday cookies” is integral part of Christmas festivities);

see also Wilton Indus. Canada Ltd. v. Comm’r of Canada Customs & Revenue

Agency, AP-2001-088 (CITT Nov. 8, 2002)

("Wilton-Canada II")

(summarizing witness testimony that "the preparation of ... baked goods is an integral part of the Christmas holidays”). In this sense, the active, participatory — and often social — nature of the baking process associated with special occasions (a phenomenon which the Government has steadfastly ignored) gives Wilton’s bakeware an "entertainment” value that exceeds that of much other "festive” merchandise — such as Christmas ornaments, nativity scenes, festive table linens and such — which, by their very nature, help “celebrate” an occasion in a much more passive manner.