# Wilton Industries, Inc. v. United States

> United States Court of International Trade · June 11, 2007 · 493 F. Supp. 2d 1294

URL: https://www.frixlaw.com/law-library/cases/1558269

## Case

- **Full name:** WILTON INDUSTRIES, INC., Plaintiff, v. UNITED STATES, Defendant
- **Court:** United States Court of International Trade
- **Decided:** June 11, 2007
- **Citations:** 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
- **Precedential status:** Published
- **Opinion:** Opinion by Ridgway
- **Judges:** Ridgway
- **Cited by:** 1 later opinions in the Frix Law Library

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## Opinion text

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).
1
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”),
2
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),
3
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.
I.
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.”
4
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).
5
*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.
A.
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.
6
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,
7
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.
8
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.
9
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.”
10
*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.
B.
“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.
11
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.
12
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.
A.
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).
13
*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.
14
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.
15
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).
16
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).
17
*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.”
18
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.
B.
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).
19
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.
20
In
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],
21
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).
22
*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:
In
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).
23
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.
24
*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],”
25
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.
C.
“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.
26
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”).
27
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).
28
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 .
29
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,
or
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)
30
(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”)
31
;
Nicholson I,
AP-96-080 (CITT April 25, 1997) (weddings and anniversaries).
32
Indeed, neither party has here identified any country that limits classification as “festive articles” under heading 9505 solely to merchandise associated with recognized “holidays.”
33
*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.
34
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.
35
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.
36
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.
D.
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.
37
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.
38
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.
39
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 .
E.
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.
40
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.
41
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 Conair Corp. v. United States,
29 CIT -, -, 2005 WL 1941649 at * 5-* 6 (2005) (“essential character” of tabletop fountains imparted by pump, rather than sculpture element of fountain; consumer’s decision to purchase fountain “based entirely on the presence of the submersible pump and its ability to generate the sound of flowing water”). The marketing of the merchandise is relevant as well, though it does not dictate classification.
See Mead Corp. v. United States,
283 F.3d 1342, 1349 (Fed.Cir.2002).
If merchandise cannot be classified pursuant to GRI 3(b) and the “essential character” test, then it is classified “under the heading which occurs last in numerical order among those which equally merit consideration,” pursuant to GRI 3(c).
See
GRI 3(c), HTSUS.
*1324
F.
The Classification of the Subject Merchandise
In light of the analyses above, all that remains is to classify each individual piece of the subject merchandise, applying the two-prong test for “festive articles” established in
Midwest of Cannon Falls,
122 F.3d 1423 . As distilled in
Park B. Smith
and outlined above, that test requires that an article be both (1) “closely associated with a festive occasion,” and (2) “used or displayed principally during that festive occasion.”
See Park B. Smith,
347 F.3d at 927
(citing Midwest of Cannon Falls,
122 F.3d at 1429 ). If the article’s use or display at other times would not be “aberrant,” then the merchandise does not satisfy the test and cannot be classified as a “festive article” under heading 9505.
Park B. Smith,
347 F.3d at 927 , 929
42
1.
Wedding Cake Separator Plates, Pillars, Columns, and Plate Legs
Much of the Wilton merchandise remaining at issue consists of wedding cake separator plates, pillars and columns, and separator plate legs, all of which Wilton contends are classifiable as “festive articles” under heading 9505.
Specifically, the separator plates, pillars and columns, and plate legs at issue include 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%"
Oval Separator Plate (item # 302-2130), the 11/é" 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)4" 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).
See
Pl.’s Amended Exh. B-l.
43
*1325
As discussed above, the wedding cake separator plates, pillars and columns, and plate legs are used in combination with one another to separate and elevate the layers of a multi-tiered cake of the type typically served at a wedding reception or an anniversary celebration. To be sure, the merchandise has a “functional” or “utilitarian” purpose. But, because the separator plates, pillars and columns, and plate legs are visible when the wedding cake is presented (and, indeed, are part of the “presentation” of the wedding cake as a whole),
44
they must be beautiful, as well as stable and strong.
See generally
section I.A,
supra.'
45
The separator plates, pillars and columns, and plate legs are, in essence, non-edible cake decorations for use on multi-tiered wedding-type cakes. 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.”
46
See
Explanatory Notes, Heading 9505, HTSUS; Pl.’s Brief at 16-17 (asserting that items at issue are “cake decorations” within meaning of Explanatory Notes to heading 9505); section III.C,
supra
(discussing weddings as “festive” occasions within meaning of heading 9505).
In addition, as a review of the exhibits that Wilton filed with the Court amply demonstrates, Wilton’s separator plates, pillars and columns, and plate legs are designed to evoke the look of fine leaded crystal, elegant lace, and other nuptial motifs “closely associated with” weddings and anniversaries.
See Park B. Smith,
347 F.3d at 927 (citation omitted). They are, in short, unmistakably 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 separator plates, pillars and columns, and plate legs are so distinctively nuptial that their use on routine occasions would be patently “aberrant.”
47
See Park B. Smith,
347 F.3d at 927, 929 .
48
*1326
The determination that Wilton’s wedding cake separator plates, pillars and columns, and plate legs are “festive articles” under heading 9505 is consistent with the decision of the Canadian International Trade Tribunal (“CITT”) in a case involving similar merchandise, and is further reinforced by the parties’ Stipulation in this action.
The imported items at issue in
Nicholson I
were Wilton merchandise comparable to that at issue here — wedding cake separator plates, columns, and pillars (as well as cake toppers).
See Nicholson I,
AP-96-080 (CITT April 25, 1997). The CITT observed that the Explanatory Notes to heading 9505 expressly state that “festive articles” include “[c]ake and other decorations ... which are traditionally associated with a particular festival.”
Id.
Noting that “[a] ‘decoration’ is generally defined as ‘anything used to add beauty: ornament,’ ” the CITT ruled that “the goods in issue, which sit on or beside wedding or anniversary cakes, are decorations or ornaments associated with particular festive occasions or festivals, namely weddings and anniversaries.”
Id.
And the CITT expressly ruled that the Wilton wedding cake separator plates, columns, and pillars at issue there — virtually identical to the merchandise in dispute here — were wedding cake decorations, and thus “festive articles” within the scope of heading 9505:
With respect to the columns or pillars and separator plates, in particular, ... they are, in part, a structural element of the cake and, for that reason, have a function, in themselves. However, ...
the physical appearance of these products is decorative such that they may also be considered to be decorations or ornaments of cakes.
Nicholson
/, AP-96-080 (CITT April 25, 1997) (emphasis added).
Finally, there is the Stipulation between the parties. As Wilton notes, “Customs has already agreed that [items similar to the separator plates, columns and pillars, and plate legs still at issue] are classified under HTS Subheading 9505.90.4000.” Pl.’s Brief at 21;
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.
49
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.”
2.
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).
50
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.
51
*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 .
52
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.
3.
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.
53
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)).
54
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,
55
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”).
56
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.
57
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.”
58
4.
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).
a.
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).
59
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)
60
;
Russ Berrie,
381 F.3d at 1336 (”[s]nowmen decorated with holly).
61
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).
62
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 .
63
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-*
6.
64
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.
65
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).
66
In short, neither the basic star motif nor the motif of a gingerbread family
67
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.”
b.
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.
68
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).
69
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.)
70
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.”
c.
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).
71
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).
72
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).
73
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.
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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).
74
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.
75
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.
76
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).
77
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).
78
*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.”
d.
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.”
79
*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).
80
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 .
81
*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
*1347
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—

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1558269. Public record. Not legal advice.