Wilton Indus., Inc. v. United States

Slip Op. 07-94

UNITED STATES COURT OF INTERNATIONAL TRADE

__________________________________

:

WILTON INDUSTRIES, INC.,

:

Plaintiff,

: Court No. 00-11-00528

v.

:

UNITED STATES,

:

Defendant.

__________________________________:

[Plaintiff’s Motion for Summary Judgment granted in part; Defendant’s Cross-Motion granted in

part; Judgment to enter accordingly.]

Dated: June 11, 2007

Neville Peterson LLP (John M. Peterson, Michael T. Cone, and Maria E. Celis), for Plaintiff.

Peter D. Keisler, Assistant Attorney General; Barbara S. Williams, Attorney in Charge,

International Trade Field Office, Commercial Litigation Branch, Civil Division, U.S. Department

of Justice (Mikki Graves Walser); Yelena Slepak, Office of the Assistant Chief Counsel,

International Trade Litigation, U.S. Customs and Border Protection, U.S. Department of Homeland

Security, Of Counsel; for Defendant.

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

Court No. 00-11-00528 Page 2

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 Plaintiff’s 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 Plaintiff’s Motion for Summary

Judgment (“Pl.’s Brief”); Memorandum in Opposition to Defendant’s Cross-Motion for Summary

Judgment (“Pl.’s Reply Brief”); Supplement to Plaintiff’s Memorandum of Points and Authorities

(“Pl.’s Supp. Brief”); Plaintiff’s 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

1

The parties have agreed that their Stipulation is to be incorporated into the Judgment in this

action. All articles subject to the Stipulation are classified as “festive articles” under one of two

subheadings of HTSUS heading 9505. See Stipulation.

2

All citations are to the 1999 version of the HTSUS (including all Section and Chapter Notes,

and the General Rules of Interpretation). In addition, except as otherwise noted, all citations to the

Explanatory Notes are to the 1996 version, the relevant provisions of which were in effect in 1999.

Court No. 00-11-00528 Page 3

(depending on the item at issue),3 liquidating it at rates of duty ranging from 3.1% to 6.5% ad

valorem. See generally Defendant’s Opposition to Plaintiff’s Motion for Summary Judgment and

Cross-Motion for Summary Judgment (“Def.’s Brief”); Defendant’s Reply to Plaintiff’s Opposition

to Defendant’s Cross-Motion for Summary Judgment (“Def.’s Reply Brief”); Defendant’s

Supplemental Memorandum in Opposition to Plaintiff’s Motion for Summary Judgment and In

Support of Defendant’s Cross-Motion for Summary Judgment (“Def.’s Supp. Brief”); Defendant’s

Reply to Plaintiff’s Supplement to Plaintiff’s Memorandum of Points and Authorities (“Def.’s Supp.

Reply Brief”).

For the reasons set forth below, both Plaintiff’s 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,

3

HTSUS heading 3924 covers “Tableware, kitchenware, other household articles and toilet

articles, of plastics,” while heading 3926 covers “Other articles of plastics and articles of other

materials of headings 3901 to 3914.” Heading 7615 covers “Table, kitchen or other household

articles and parts thereof, of aluminum; pot scourers and scouring or polishing pads, gloves and the

like, of aluminum; sanitary ware and parts thereof, of aluminum.” And heading 7323 covers “Table,

kitchen or other household articles and parts thereof, of iron or steel; iron or steel wool; pot scourers

and scouring or polishing pads, gloves and the like, of iron or steel.”

4

According to Wilton’s website, the Illinois-based company markets a wide range of

products. Wilton’s Online Store includes a Baby Shop, a Bakeware Shop, Books & Videos, a Cake

Decorating Shop, a Candy Shop, a Cookie Shop, a Party Shop, a Seasonal Shop, a Theme &

Character Shop, a Wedding Shop, and Stationery.

Court No. 00-11-00528 Page 4

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

Among other things, Wilton’s website also offers tips on cake decorating techniques,

suggested party ideas, recommended recipes and projects, details about contests, information about

Wilton’s own School of Cake Decorating & Confectionary Art (as well as information on “Wilton

Method” classes at locations nationwide), and an online “Discussion Forum” devoted to the

exchange of ideas on cake decorating and similar arts.

5

Except as otherwise noted, the information in this section is drawn generally from the

Affirmation filed by Wilton, from the Statements of Material Facts Not in Dispute filed by the

parties, and from the pages printed from Wilton’s website and the pages from Wilton’s Yearbook

catalog which Wilton filed in support of its motion.

Throughout the course of litigation, the Government has criticized the quantum, the quality,

and the timing of the submission of Wilton’s evidence. Wilton, in turn, has criticized the

Government for proffering no evidence of its own (and, indeed, apparently conducting little or no

discovery in this matter). See Pl.’s Supp. Brief at 11-12; Pl.’s Supp. Reply Brief at 5-6.

In Defendant’s Response to Plaintiff’s Statement of Facts, for example, the Government

emphasized that the exhibits filed with Wilton’s opening brief did not include depictions of some

of the bakeware and some of the cookie cutters and cookie stamps at issue (although the Government

failed to specify which were missing). See Def.’s Response to Pl.’s Statement of Facts ¶¶ 8-9; see

also Def.’s Reply Brief at 10 n.3. The Government similarly criticized Wilton for not filing

affidavits in support of its case. See Def.’s Brief at 3, 21; Def.’s Reply Brief at 9.

When Wilton later sought to cure the deficiencies in its exhibits, however, the Government

criticized Wilton’s submissions as “belated.” See, e.g., Def.’s Supp. Reply Brief at 1-2; Letter to

Court from Counsel for Defendant to Court (May 16, 2007). And the Government has argued that

the affirmation that Wilton filed should be stricken from the record on various grounds. See

generally Def.’s Reply Brief at 9-12.

To be sure, Wilton is obligated to submit proof documenting the nature of its merchandise;

and, to be sure, it largely defaulted on that obligation until relatively recently. It is not the job of the

court or opposing counsel to police the completeness of a party’s evidence, and then notify that party

of any deficiencies. The bottom line, however, is that the Government has not even alleged – much

less demonstrated – any actual prejudice as a result of Wilton’s belated submissions in this action.

The Government’s objections to the affirmation that Wilton filed are also wide of the mark.

Accordingly, the Government’s motion to strike must be denied. The affirmation is “bare-bones,”

to put it charitably. But the Government’s principal criticisms are that the affirmation is undated,

Court No. 00-11-00528 Page 5

and that the affiant was not in Wilton’s employ at the time of the events at issue here. See generally

Def.’s Reply Brief at 9-12. As a general matter, however, “the absence of the formal requirements

of a jurat in a sworn affidavit does not invalidate the statements [in the affidavit] or render them

inadmissible.” Peters v. United States, 408 F.2d 719, 722 (Ct. Cl. 1969) (quoted in Pfeil v. Rogers,

757 F.2d 850, 859 (7th Cir. 1985)). Thus, in the interests of justice, trial courts are admonished not

to be “unnecessarily hypertechnical and overly harsh on a party who unintentionally fails to make

certain that all technical, non-substantive requirements of execution are satisfied.” Pfeil, 757 F.2d

at 859 (holding that district court erred in rejecting affidavits for lack of notarial seal); 11 James

Wm. Moore et al., Moore’s Federal Practice § 56.14[1][b] (3d ed. 2006). Certainly the Government

has not suggested that the absence of a date on Wilton’s affirmation casts doubt on the truth of any

specific statement therein. See generally Pl.’s Supp. Brief at 12-13.

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

specific events does not ipso facto mean that the affiant lacks the personal knowledge required to

attest to facts that predate his or her tenure at the company. See Def.’s Reply Brief at 9-10 (arguing

that “there is no indication that [the affiant] has ever seen the merchandise at issue, which was

imported approximately three years prior to her assuming the position of Vice President of Wilton”).

“[C]orporate officers are presumed to have personal knowledge of acts of their corporation.” See

11 Moore’s Federal Practice § 56.14[1][c]. And it is clear beyond cavil that “[p]ersonal knowledge

. . . does not require contemporaneous knowledge.” Id. (citing, inter alia, Dalton v. FDIC, 987 F.2d

1216, 1223 (5th Cir. 1993) (affidavit of corporate officer was not defective simply because he learned

of transaction after it had occurred)). Here, the Government has “produced no evidence to show that

[Wilton’s affiant] did not know what [s]he was talking about.” Zayre Corp. v. S.M. & R. Co., 882

F.2d 1145, 1151 (7th Cir. 1989). Nor has the Government “produce[d] any evidence to specifically

cast doubt on [the affiant’s] credibility.” Id.; see generally Pl.’s Supp. Brief at 12-13.

At the eleventh hour (in the course of supplemental briefing), the parties have traded barbs

as to matters such as their respective evidentiary burdens and the effect of the presumption of

correctness. See 28 U.S.C. § 2639(a)(1) (2000) (presumption of correctness). Wilton argues that

“once the plaintiff has provided a prima facie case, the government has an obligation to provide its

own evidentiary support for its claims that plaintiff’s merchandise is not entitled to classification

under Heading 9505.” See generally Pl.’s Supp. Brief at 9-12. Wilton emphasizes: “[The

Government] has not provided any factual evidence that the subject merchandise should not be

classified under Heading 9505. It has simply criticized every aspect of [Wilton’s] evidence and

stated that whatever has been provided is not enough.” See Pl.’s Supp. Reply Brief at 5-6.

The Government argues – for the first time in its Supplemental Brief – that it “is not required

to produce evidence,” because, it asserts, “Wilton has failed to meet its burden of contradicting

Customs’ presumptively correct factual finding that the imported articles are not ‘festive articles.’”

See Def.’s Supp. Brief at 15-16 (quoting Saab Cars USA, Inc. v. United States, 434 F.3d 1359, 1368

Court No. 00-11-00528 Page 6

(Fed. Cir. 2006)).

In briefing these points, however, neither party has adequately addressed the interplay of all

relevant principles and doctrines. For example, the Government fails to acknowledge that the parties

are in agreement that no material facts are in dispute. See, e.g., Pl.’s Brief at 13; Def.’s Brief at 2,

4, 6. And the statutory presumption of correctness attaches only to Customs’ factual findings. Thus,

where – as here – there are no disputes of material fact, the presumption of correctness has no

practical effect. See, e.g., Universal Elecs., Inc. v. United States, 112 F.3d 488, 492 (Fed. Cir. 1997)

(quoting Marbury v. Madison, 5 U.S. 137, 177 (1803)); id. (citing Goodman Mfg., L.P. v. United

States, 69 F.3d 505, 508 (Fed. Cir. 1995)) (“[W]e conclude that although the presumption of

correctness applies to the ultimate classification decision, [plaintiff] properly interprets Goodman

as standing for the proposition that, as a practical matter, the presumption carries no force as to

questions of law.”).

As Wilton emphasizes, the Government similarly fails to acknowledge that it has cross-

moved for summary judgment, and ignores the implications of that fact. See Pl.’s Supp. Reply Brief

at 6. It is one thing for a party to defeat a movant’s motion for summary judgment; it is something

else entirely to prevail as cross-movant.

Finally, Saab – on which the Government seeks to rely heavily – was not a classification

case, and is thus distinguishable from the case at bar. See Saab, 434 F.3d at 1368. In classification

cases, the Court has an independent obligation under Jarvis Clark to ascertain the proper

classification of merchandise in dispute. See Jarvis Clark Co. v. United States, 733 F.2d 873, 876

(Fed. Cir. 1984). And, as officers of the court, counsel have a duty to assist the Court in that

function. Even if Wilton had not made out a prima facie case for “festive articles” classification of

any of its merchandise, neither party has argued that the Court would somehow be relieved of its

Jarvis Clark obligation (and that the Government could somehow, in essence, prevail on its cross-

motion by default).

Fortunately, there is no need to definitively resolve such issues here. Notwithstanding their

posturing, the parties have steadfastly maintained throughout the course of litigation – despite

countless opportunities to indicate to the contrary (before, during, and after oral argument) – that

there are no disputes of material fact which would preclude summary judgment in favor of either

party. And, although the existing evidentiary record is thin on a number of points, and does not

afford the pristine basis for summary judgment that would be optimal (and which a court is certainly

entitled to expect), it is also abundantly clear that a trial would serve no real purpose in this matter.

See, e.g., Pl.’s Brief at 13 (stating that “[t]here is no genuine dispute of material fact”); Def.’s Brief

at 2 (noting that “[t]here is no dispute between the parties regarding what the merchandise is or how

it is actually used”), 4 (“Summary judgment is proper as there are no material facts in dispute.”), 6

(“Inasmuch as the parties agree as to what the merchandise is and how it is used, this action is ripe

Court No. 00-11-00528 Page 7

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

for summary judgment.”).

Court No. 00-11-00528 Page 8

cookware, kitchenware, and bakeware (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

Characters,” 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

6

Multi-tiered wedding-type cakes are created using one of two methods – the “stacked”

method (where one tier is stacked directly on top of the tier below it), or the “pillar construction”

Court No. 00-11-00528 Page 9

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

method (where a tier is held aloft – above the tier below it – through the use of pillars or columns,

in combination with separator plates).

7

Thus, for example, pillars and/or columns are used to separate the tiers of a multi-tiered

cake. Pillars are offered in styles including “Crystal-Look,” “Crystal-Look Spiked,” “Grecian,”

“Grecian Spiked,” “Arched,” “Dancing Cupid,” “Swan,” and “Hidden.” Similarly, columns are

offered in “Lattice” and “Roman” styles.

Court No. 00-11-00528 Page 10

enhancing whatever overall look they are seeking to create with their wedding cake.

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 . . . : Other:

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

All pillars and columns are available in a range of heights, and are specifically designed to

coordinate with various styles of cake separator plates, including “Crystal-Look [Separator] Plates”

and other wedding merchandise from Wilton’s “Crystal-Look” line (for use with Crystal-Look and

Crystal-Look Spiked Pillars), and “Decorator Preferred,” “Baker’s Best,” “Square,” “Heart,” “Oval,”

and “Hexagon” separator plates (for use with other styles of pillars, as well as all columns).

8

As Wilton pointedly observes, much of the merchandise that is the subject of the parties’

Stipulation consists of wedding cake separator plates, columns, and pillars similar to those still at

issue. According to Wilton, there is “no reasonable basis” for distinguishing between the

merchandise to which the parties have stipulated and that which remains in dispute. See Stipulation;

Pl.’s Brief at 21. And the parties have agreed that all merchandise subject to the Stipulation should

be classified as “festive articles” under heading 9505. See Pl.’s Brief at 21; Pl.’s Reply Brief at 2;

Pl.’s Supp. Reply Brief at 4-5. But see Def.’s Brief at 17 n.10, 18 n.11; Def.’s Supp. Brief at 8-9.

Court No. 00-11-00528 Page 11

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

9

Customs liquidated different entries of the exact same merchandise under two different tariff

provisions. Contrary to the Government’s claim (see Def.’s Brief at 29), the different classifications

cannot be attributed to differences in “the material of which the article was comprised.”

10

The parties agree that the cake press sets were liquidated under Chapter 39 of the HTSUS.

However, there is a discrepancy in the record as to the precise heading and subheading under which

the merchandise was liquidated.

Court No. 00-11-00528 Page 12

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

According to Wilton, Customs liquidated the cake press sets as “Tableware, kitchenware,

other household articles and toilet articles, of plastics: Tableware and kitchenware: Other,” under

HTSUS subheading 3924.10.50. See, e.g., Pl.’s Brief at 7; Pl.’s Exh. G-1; Pl.’s Amended Exh. G-1.

In contrast, the Government contends that the cake press sets were liquidated under subheading

3926.90.98, as “Other articles of plastics . . . : Other: Other.” See, e.g., Def.’s Brief at 3, 29.

Court No. 00-11-00528 Page 13

“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

Court No. 00-11-00528 Page 14

heading 9505.11 See Section Note 1(l) (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

11

Section and Chapter Notes are not optional interpretive rules, but – instead – are statutory

law, codified at 19 U.S.C. § 1202. See Park B. Smith, Ltd. v. United States, 347 F.3d 922, 926 (Fed.

Cir. 2003) (citing Libas, Ltd. v. United States, 193 F.3d 1361, 1364 (Fed. Cir. 1999)).

Court No. 00-11-00528 Page 15

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, coloured 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 tape),

cardboard trumpets, “blow-outs”, confetti, carnival umbrellas, etc.

Court No. 00-11-00528 Page 16

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) Packagings 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

12

Unlike Section and Chapter Notes (see n.11, supra), Explanatory Notes are not binding.

See Park B. Smith, 347 F.3d at 929 n.3 (citing JVC Co. of America v. United States, 234 F.3d 1348,

1352 (Fed. Cir. 2000)). They may, however, be consulted for guidance and “are generally indicative

of the proper interpretation of the various HTSUS provisions.” JVC, 234 F.3d at 1352 (quoted in

Park B. Smith, 347 F.3d at 929 n.3).

Court No. 00-11-00528 Page 17

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 (1944). See United States v. Mead Corp., 533 U.S. 218, 235 (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 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

Court No. 00-11-00528 Page 18

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.

Court No. 00-11-00528 Page 19

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 The

13

Although the Government’s principal argument focuses on the “functional” or “utilitarian”

nature of the merchandise, its briefs are not models of clarity. They are laced with a number of

scattered, occasional, casual allusions to other concepts such as whether the merchandise at issue

is “displayed” (apparently in an “ornamental” sense), whether the merchandise has “entertainment”

value, and similar issues. The Government’s briefs do nothing whatsoever to develop those

arguments in any coherent fashion, however; and, indeed, the Government often seems to be using

concepts interchangeably. Such scattered, casual, offhand references cannot give rise to an

obligation – on the part of either opposing counsel or the Court – to flesh out and then respond to

a party’s barest intimations.

In the interest of completeness, the Government’s briefs have been “mined” for such

intimations, which are collected and addressed in summary fashion here. However, it is far from

clear that the Government’s briefs filed in this forum should suffice to preserve its rights. Any

attempt to raise such issues on appeal should meet with skepticism, and merits very close scrutiny.

As an initial matter, both parties devote ink to whether merchandise classifiable as “festive

articles” under heading 9505 must be both “used” and “displayed” in connection with a “festive”

occasion. The Government repeatedly insists that merchandise must be “used and displayed.” See,

e.g., Def.’s Brief at 19 (asserting that “Midwest and Smith involved articles which were themselves

displayed and used”); Def.’s Reply Brief at 2 (asserting that “festive articles” classification requires

that “the article must be displayed and used” in connection with “festive” occasion), 7-8 (same);

Def.’s Supp. Brief at 2 (same). However, in Park B. Smith, the Court of Appeals has spoken clearly

and unequivocally to the contrary, explaining that “festive article” classification “requires that the

article satisfy two criteria: (1) it must be closely associated with a festive occasion and (2) the article

is used or displayed principally during that festive occasion.” Park B. Smith, 347 F.3d at 927

(emphasis added) (citing Midwest of Cannon Falls, 122 F.3d at 1429); see also Pl.’s Reply Brief at

13 (noting that Park B. Smith “states that festive items may be displayed or used during a festive

occasion”).

In any event, contrary to the Government’s implications, there is – as a practical matter – no

apparent discernible, meaningful “bright line” distinction between “display” and “use.” In several

places, the Government suggests that “festive articles” must be, in essence, “decorations” –

apparently reading the term “display” in an “ornamental” sense. See, e.g., Def.’s Brief at 19

(asserting that “Midwest and Smith involved articles which were themselves displayed and used as

decorations”) (second emphasis added); Def.’s Reply Brief at 5 (arguing that Wilton bakeware

Court No. 00-11-00528 Page 20

cannot be classified as “festive articles” because it is not “decorations”); Def.’s Supp. Brief at 7

(arguing that bakeware cannot be classified as “festive articles” because a “baking pan is not itself

used as decoration”). But see Pl.’s Reply Brief at 13 n.6 (disputing Government’s contention that

“display” means “ornamental” display, and arguing, inter alia, that “[e]ven if both use and display

were required . . . , the display may be nothing more than that which is incidental to the use of the

article. It need not be a decorative use . . . ”).

The Government claims that there is no evidence that Wilton’s bakeware is used as

“decorations.” See, e.g., Def.’s Brief at 20 (asserting that bakeware “is not used as decorations,” and

that there is “absolutely no evidence that anyone would decorate a home with baking pans, cookie

cutters, cake message presses, or any other cooking tools during any holiday”); Def.’s Supp. Brief

at 7 (asserting that “the baking pan is not itself used as decoration and there is absolutely no

evidence that such articles are displayed”).

The Government is simply wrong on the record. Contrary to the Government’s claims, text

from Wilton’s Yearbook catalog and other promotional literature filed in this action emphasizes a

range of “decorative” uses for Wilton’s bakeware, cookie cutters, and cookie stamps. Thus, for

example, the description of the Jolly Shapes Cookie Cutter Set (item # 2308-1201) emphasizes: “Our

metal [cookie] cutters look great with their bright colors and glossy enamel finish. Four shapes are

perfect for hanging on the [Christmas] tree until your next cookie-baking bash.” (Emphasis added.)

To the same end is the description of the Spooky Shapes Cookie Cutter Set (item # 2308-1200):

“Our metal [cookie] cutters will look great in your kitchen with their glossy enamel finish. Four

favorite shapes are perfect for hanging on the wall until your next cookie baking bash.” (Emphasis

added.) Similarly, the description of the Star Nesting Perimeter Cutter Set (item # 2304-111)

advertises: “[R]emember all the fun ways to use our [cookie] cutters – for bread shapes, stencils, sun

catchers, and so much more.” (Emphasis added.) And the description of the Gingerbread Boy

Cookie Mold (item # 2306-1019) emphasizes: “Our finely detailed mold helps you and the family

create beautifully-sculpted cookies with ease . . . . Molds are great to hang for a festive decoration

all season long.” (Emphasis added.) See Pl.’s Exhs., passim. Moreover, it is a reasonably safe

assumption that additional evidence would have been proffered on this point had the Government

briefed the matter adequately, so as to put Wilton on proper notice. Any complaints by the

Government about the state of the evidentiary record must therefore fall on deaf ears.

Not only is the Government wrong about the record evidence – but, more importantly, the

Government is wrong on the law. There is simply nothing in the Explanatory Notes to heading 9505

or in the HTSUS itself – just as there is nothing in either Midwest of Cannon Falls or Park B. Smith

– that requires that “festive articles” must, by definition, be “decorative” (at least in the sense that

the Government appears to be using that term). The Explanatory Notes plainly envision

classification under heading 9505 of not only “[d]ecorations such as festoons, garlands . . . ,” but

also non-decorative items as well, including – but not limited to – other (non-decorative) types of

Court No. 00-11-00528 Page 21

“[a]rticles traditionally used at Christmas festivities.” See Explanatory Notes, Heading 9505,

HTSUS. Indeed, the Explanatory Notes specifically list “Christmas crackers” as one examplar of

“festive articles,” with no implication that the crackers must be used to “decorate” a household or

otherwise “displayed” before being pulled. See Explanatory Notes, Heading 9505, HTSUS

(providing for classification of “Christmas crackers” as “festive articles” under heading 9505);

Wikipedia, Christmas cracker, http://en.wikipedia.org/wiki/Christmas_cracker (as of June 8, 2007)

(explaining that Christmas crackers “are an integral part of Christmas celebrations in the United

Kingdom,” among other places; “A cracker consists of a cardboard tube wrapped in a brightly

decorated twist of paper . . . [which is] pulled by two people, and, much in the manner of a

wishbone, . . . splits unevenly. The split is accompanied by a small bang produced by the effect of

friction on a chemically impregnated card strip (similar to that used in a cap gun) . . . Typically the[]

contents [of the Christmas cracker] are a coloured paper hat or crown; a small toy or other trinket

and a motto, a joke or piece of trivia on a small strip of paper. Crackers are often pulled after

Christmas dinner or at parties.”)

The Government also makes the vague claim that “the use of cooking tools to bake cakes or

make cookies is not the kind of ‘use’ contemplated by the courts in Midwest and Smith.” See Def.’s

Reply Brief at 8. But the Government wholly fails to elucidate that conclusory assertion, except to

argue that “[t]he cooking tools imported by Wilton are clearly used in preparation for, not in

celebration [of], nor for entertainment on a joyous holiday.” Id. (emphasis added).

That argument intimates the existence of some stringent temporal restriction on “festive

articles” that finds no basis in the HTSUS, the Explanatory Notes, or the law of Midwest of Cannon

Falls and Park B. Smith. For example, it is clear from the subheadings of heading 9505 of the

HTSUS and from the existing caselaw that “Christmas ornaments” are classifiable as “festive

articles” under heading 9505. See Subheading 9505.10, HTSUS (providing for classification of

“Christmas ornaments”); Midwest of Cannon Falls, 122 F.3d at 1427 (discussing classification of

“Christmas ornaments” under heading 9505). There is no requirement that such ornaments be put

out only on Christmas Eve and, in turn, returned to storage or disposed of on December 26. So too,

it would defy logic and common sense to rule that – to the extent that making Christmas cookies is

typically an activity that families enjoy in the days leading up to the actual holiday – Christmas

cookie cutters are per se excluded from the scope of heading 9505 because they are used “in

preparation for” the actual holiday. The distinction that the Government seeks to draw is much too

simplistic.

Indeed, in questions sent to the parties in preparation for oral argument, the Court

specifically inquired: “In fact, isn’t the use of Christmas cookie cutters to make Christmas ‘cut out’

cookies a holiday tradition? Isn’t the process of making Christmas cookies itself thus a part of the

holiday festivities, rather than mere preparation for the festivities?” The Government never directly

responded to that point.

Court No. 00-11-00528 Page 22

Whether treated as merchandise used “in preparation for,” used “in celebration of,” or used

“for entertainment on” a holiday, the Government has failed to explain how the temporal use of

Wilton’s Christmas cookie cutters, for example, differs fundamentally from that of “festive articles”

such as Christmas ornaments (see subheading 9505.10, HTSUS), nativity scenes (see subheading

9505.10.30, HTSUS), festive table linens (see Park B. Smith), and nutcrackers (see Midwest of

Cannon Falls) – all of which are typically used and/or displayed “in preparation for” (that is, in the

days leading up to) Christmas itself.

Finally, the Government suggests that Wilton’s bakeware, cookie cutters, and cookie stamps

cannot be classified as “festive articles” because they lack “entertainment” value. See, e.g., Def.’s

Reply Brief at 8 (arguing that merchandise at issue is not used “in celebration” of or “for

entertainment on a joyous holiday”); Def.’s Supp. Brief at 6 (asserting that merchandise at issue does

not “share the toy-like amusement qualities of the articles expressly provided for in subheading

9505.90”). The Court of Appeals met this argument head-on in Midwest of Cannon Falls, and made

short work of it. See generally Midwest of Cannon Falls, 122 F.3d at 1427 (rejecting Government’s

argument that merchandise in that action was not classifiable under heading 9505 because it was not

used for “entertainment,” or for “amusement or merriment”).

In Midwest of Cannon Falls, the Court of Appeals noted that it was “somewhat unclear what

the government means by articles for ‘entertainment, amusement or merriment’ because the

imported items (e.g., various Santa figures) are at least as ‘entertaining’ as Christmas tree ornaments

that the government admits belong under heading 9505.” Id. The Court of Appeals emphasized that

“even under the government’s own argument, heading 9505 covers a range of products spanning

Christmas tree ornaments to nativity scenes.” Id. The Court of Appeals concluded that the

merchandise at issue in that action was “at least as ‘entertaining’ as the nativity scenes” expressly

covered by one of the subheadings of heading 9505. Id. In sum, even if “festive articles” must have

“entertainment” value (as the Government continues to insist), the “entertainment” threshold is

nowhere near as high as the Government suggests.

If articles such as nativity scenes and the festive table linens of Park B. Smith are deemed

to provide “entertainment,” there can be no serious dispute as to the “entertainment” value of

Christmas cookie cutters and other similar bakeware. As discussed in the course of oral argument

in this matter, for example, the making of Christmas cookies is a cherished holiday rite in many U.S.

households, for both the young and the young-at heart – a tradition steeped in warm memories of

Christmases past, and a tradition passed down from one generation to the next in kitchens all across

the country.

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

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

itself – that is, the “use” of the merchandise actually at issue here. See, e.g., Def.’s Brief at 20

Court No. 00-11-00528 Page 23

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 Reply

(arguing that “cake pans, cookie cutters, presses and other cooking tools are not themselves used to

celebrate any holiday,” and that it is the cookies and the cakes that are so used).

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

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

eating. See Pl.’s Exh. (describing Star Nesting Perimeter Cutter Set (item # 2304-111) – “With our

shaped [cookie] cutters, the making is as much fun as the eating! Child-safe design means kids can

have a great time helping.”) (emphases added); Pl.’s Protest at 14 (noting that “[b]aking holiday

cookies” is integral part of Christmas festivities); see also Wilton Indus. Canada Ltd. v. Comm’r of

Canada Customs & Revenue Agency, AP-2001-088 (CITT Nov. 8, 2002) (“Wilton-Canada II”)

(summarizing witness testimony that “the preparation of . . . baked goods is an integral part of the

Christmas holidays”). In this sense, the active, participatory – and often social – nature of the

baking process associated with special occasions (a phenomenon which the Government has

steadfastly ignored) gives Wilton’s bakeware an “entertainment” value that exceeds that of much

other “festive” merchandise – such as Christmas ornaments, nativity scenes, festive table linens and

such – which, by their very nature, help “celebrate” an occasion in a much more passive manner.

See also Pl.’s Exhs. (describing Gingerbread Boy Cookie Mold (item # 2306-1019), emphasizing

often festive, social nature of baking process itself – “Our finely detailed mold helps you and the

family create beautifully-sculpted cookies with ease”) (emphasis added); id. (describing Jolly Shapes

Cookie Cutter Set (item # 2308-1201), emphasizing often festive, social nature of baking process

itself – “Four shapes are perfect for hanging on the [Christmas] tree until your next cookie-baking

bash.”) (emphasis added); id. (describing Spooky Shapes Cookie Cutter Set (item # 2308-1200),

emphasizing often festive, social nature of baking process itself – “Four favorite shapes are perfect

for hanging on the wall until your next cookie baking bash.”) (emphasis added).

14

In their briefs, both parties consistently failed to clearly indicate which of their arguments

relate to which items of Wilton’s merchandise. The parties were pressed several times to clarify

their positions. For example, in questions provided to the parties in preparation for oral argument,

the Court specifically inquired: “Is it crystal clear from the parties’ papers, as to each and every

item remaining at issue in this action, which arguments apply to which items? Is it crystal clear

from the parties’ papers, as to each and every item remaining at issue in this action, exactly which

classification the parties assert?” (First emphasis added.) The Court raised the matter with the

Court No. 00-11-00528 Page 24

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;

parties again, in the course of oral argument.

Although Wilton clarified its positions (to some extent) in its supplemental submissions, the

Government never did so. As a result, as a general matter, it is extremely difficult – and often

impossible – to definitively discern from the Government’s briefs which of its arguments relates to

which items of the merchandise at issue. Under the circumstances, it is reasonable to construe any

ambiguities against the Government.

The only items that the Government expressly refers to in making the argument under

discussion here – that is, the argument that “utilitarian” or “functional” items are not classifiable

under heading 9505 – are “baking pans, cookie cutters and other cooking tools.” See Def.’s Brief

at 25. “Cooking tools” is a reference to Wilton’s tree former sets, which are no longer at issue in

this action. See Pl.’s Brief at 6-7 (dividing merchandise into general categories for purposes of

discussion, and referring to “Cake Presses and Cooking Tools”). In any event, whether the

Government’s argument relates only to Wilton’s bakeware and cookie cutters, or to all of the

merchandise still at issue, the result is the same.

15

In briefing this issue, neither party has relied in any way on Customs’ recent action seeking

to limit the application of Park B. Smith to the entries before the courts in that case. See generally

Limitation of the Application of the Decisions of the Court of International Trade and the Court of

Appeals for the Federal Circuit in Park B. Smith v. United States, 40 Cust. Bull. & Dec. No. 15 at

5 (April 5, 2006); Proposal to Limit the Decisions of the Court of International Trade and the Court

of Appeals for the Federal Circuit in Park B. Smith v. United States, 39 Cust. Bull. & Dec. No. 27

at 33 (June 29, 2005).

Court No. 00-11-00528 Page 25

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: “[D]espite 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. Jewelpak 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

16

The relevant section of the Explanatory Notes, as amended, reads:

The heading [9505] also excludes articles that contain a festive design, decoration,

emblem or motif and have a utilitarian function, e.g., tableware, kitchenware, toilet

articles, carpets and other textile floor coverings, apparel, bed linen, table linen, toilet

linen, kitchen linen.

Explanatory Notes, Heading 9505, HTSUS, at xx-9505-1 (2007) (reflecting 2003 amendment).

Court No. 00-11-00528 Page 26

(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

Court No. 00-11-00528 Page 27

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

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.

17

See also Decolin Inc. v. President of Canada Border Services Agency, AP-2004-011 (CITT

Sept. 13, 2005) (declining to apply 2003 amendment to the Explanatory Notes to heading 9505 to

merchandise imported in 2001; finding that “it would be unfair to give retroactive effect to the

August 2003 amendment,” because the goods were imported “with a reasonable expectation that

they would be classified in accordance with the terms of the Customs Tariff, including the relevant

Explanatory Notes, at the time of importation”; ruling that retroactive application of the amended

Explanatory Notes would be “contrary to natural justice and principles of fairness”).

Of course, as both parties agree, the decisions of foreign tribunals are not binding on the

courts of the United States. See Pl.’s Brief at 17; Pl.’s Reply Brief at 3, 12 (citing Medtronic, Inc.

v. Daig Corp., 789 F.2d 903, 908 (Fed. Cir. 1986) (noting, in patent case, that decision of German

tribunal does not bind U.S. courts)); Def.’s Brief at 27; Def.’s Reply Brief at 6. Cf. Cummins Inc.

v. United States, 454 F.3d 1361, 1366 (Fed. Cir. 2006). Such decisions are, however, entitled to

“respectful consideration,” and may have persuasive power. Id. And there is merit in promoting

uniformity and predictability in international trade and commerce, where possible. See generally

Cummins, 29 CIT ____, ____, ____, 377 F. Supp. 2d 1365, 1368-69, 1375-76 (2005), aff’d, 454

F.3d 1361.

Court No. 00-11-00528 Page 28

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

18

Wilton apparently contends that the 2003 amendment to the Explanatory Notes is of no

effect whatsoever absent action by the Court of Appeals to expressly rescind Midwest of Cannon

Falls and Park B. Smith. Wilton boldly asserts:

Any decision which seeks to abandon the Federal Circuit’s definition of “festive

articles,” as enunciated in Midwest of Cannon Falls and Park B. Smith . . . must

come from the Federal Circuit itself, and not from [the Court of International Trade].

Certainly, the adoption of the amended Explanatory Note cannot be said in any way

to work a revocation or overruling of those governing precedents.

Pl.’s Reply Brief at 7. Although it is not necessary to reach the point here, Wilton’s position would

seem to be extreme.

Because Midwest of Cannon Falls and Park B. Smith are predicated on the HTSUS

(including the Explanatory Notes) pre-amendment, it cannot be said that the Court of Appeals has

spoken on the effect of the Explanatory Notes, as amended. Thus, the outcome on this issue might

very well have been quite different if the chronology of events in this case had differed vis-a-vis the

importation of the goods, the adoption of the amendment to the Explanatory Notes, and the entry

into force of that amendment. Cf. Michael Simon Design, 30 CIT at ____ n.4, 452 F. Supp. 2d at

1324 n.4 (explaining how “the court’s task would be more difficult had the timing been different”

in that case).

Court No. 00-11-00528 Page 29

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,

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

19

See also Def.’s Brief at 19-20; Def.’s Reply Brief at 6-8; Def.’s Response to Pl.’s Statement

of Facts ¶¶ 8-10.

20

As noted above, the Government has failed to specify clearly which of its various

arguments relate to which items of Wilton’s merchandise. See n.14, supra. It appears that this

argument – that certain merchandise is at least “one step removed” from “festive articles” – relates

only to the cake press sets, and to the cookie cutters, cookie stamps, and bakeware. See Def.’s Brief

at 19-10, 27-28; Def.’s Reply Brief at 6-7; Def.’s Response to Pl.’s Statement of Facts ¶¶ 8-10. The

argument thus has no apparent application to the wedding cake separator plates, pillars, columns,

Court No. 00-11-00528 Page 30

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

and plate legs, or to the Cherub Place Card Holders.

21

Although the CITT states in its decision that baked goods in festive motifs are classifiable

under heading 9505, the Government here indicated – both in briefing, and in the course of oral

argument – that it does not necessarily agree. See, e.g., Def.’s Brief at 19-20.

Court No. 00-11-00528 Page 31

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

Just as the analogy drawn in Wilton-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. caselaw 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

22

In the context of a linguistic analysis comparing the French and English texts of the

language of heading 9505 and the relevant Explanatory Notes, the Wilton-Canada II tribunal opined

that – to be “festive” – merchandise must be used “during the Christmas festivities, not before

them.” Wilton-Canada II, AP-2001-088 (CITT Nov. 8, 2002). Inherent in the CITT’s decision is

an assumption that Christmas bakeware is used before (that is, in preparation for) the Christmas

festivities, and is not used as part of those festivities. As discussed above, however, that line of

reasoning finds little basis in law or fact. See n.13, supra.

Court No. 00-11-00528 Page 32

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

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

23

Accord Park B. Smith, 347 F.3d at 927 (referring in two other places to “use” and to how

item is “used” – not “displayed”; no references to “display”), 929 (four references to “use”; no

references to “display”); Russ Berrie, 381 F.3d at 1336 (referring to merchandise “used or

displayed”) (emphasis added); Id. at 1336 (discussing “symbols . . . used principally”) (emphasis

added), 1338 (referring to articles “used or displayed”) (emphasis added).

24

See generally n.13, supra (discussing, inter alia, meaning of “display” in context of

classification of merchandise as “festive articles” under heading 9505).

Contrary to the implication of the Government here and the CITT in Wilton-Canada II, there

simply is no intimation in Park B. Smith that the holiday-themed napkins at issue in that case had

to be in view, full-time, for any specific minimum number of hours or days, or seen by some certain

minimum number of people, to have been “displayed” and thus eligible for classification as “festive

articles” under heading 9505. See Park B. Smith, 347 F.3d at 926. Similarly, Christmas- and

Halloween-themed earrings and other jewelry were held to be prima facie classifiable as “festive

articles” in Russ Berrie. See Russ Berrie, 381 F.3d at 1335. But that jewelry could not be said to

be “displayed” in the same sense that a jack-o-lantern centerpiece or Christmas tree ornament (or

even a festive table runner) might be “displayed.” For example, it is unlikely in the extreme that

someone would wear a Christmas lapel pin 24 hours a day, seven days a week throughout the

Christmas season. Nor was there any indication in Russ Berrie that eligibility for classification as

“festive articles” turned on whether the jewelry was worn in public. See also Michael Simon

Design, 30 CIT at ____, 452 F. Supp. 2d at 1324 (sweaters featuring Christmas and Halloween

motifs).

In short, there is nothing in either Park B. Smith or Russ Berrie to suggest that Christmas

cookie cutters or other festive bakeware cannot be classified as “festive articles” under heading 9505

simply because they might be used only by a mother and child for a few hours each holiday season

in the comfort, warmth, and privacy of the kitchen of the family home.

Court No. 00-11-00528 Page 33

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. caselaw 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 Berrie, 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.

25

Thus, for example, just as the sewing patterns used to produce Christmas stockings would

not be classifiable under heading 9505 because – as discussed above – the use of the patterns year-

round would not be “aberrant,” so too the sewing machines used to make the Christmas stockings

would not be classifiable under heading 9505 for the same reason; nor would templates and

machinery used to produce Christmas tree decorations, or other similar festive articles.

While it may be that such sewing patterns, sewing machines, and similar templates and

machinery are – in the words of Wilton-Canada II – “one step removed” from “festive articles”

classifiable under heading 9505, the bakeware here at issue is not (at least to the extent that its use

at other times of the year would be “aberrant”).

Court No. 00-11-00528 Page 34

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,

Rubie’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

26

As footnote 14 above explains, the Government has failed to clearly indicate which of its

various arguments relate to which items of Wilton’s merchandise. It appears that this argument –

that is, the argument that so-called “private festive celebrations” are not “festive” occasions for

purposes of heading 9505 – relates to the wedding cake separator plates, pillars, columns, and plate

legs; to the Cherub Place Card Holders (as wedding-related merchandise); to the cake press sets (to

the extent that the greetings and sentiments reflected in the cake presses extend beyond recognized

“holidays”); and to the cookie cutters, cookie stamps, and bakeware (other than Christmas,

Valentine’s Day, or Halloween merchandise). See Def.’s Brief at 18-19, 24-25; Def.’s Reply Brief

at 3, 5; Def.’s Supp. Brief at 2-3.

27

The pages of Defendant’s supplemental brief are misnumbered. The brief has two pages

numbered 2, and two pages numbered 3. The pages are not duplicates, however; and, with all pages

(including the misnumbered pages), the text of the brief reads properly.

See also Def.’s Response to Pl.’s Statement of Facts ¶ 9 (denying “any inference that

birthday celebrations are festive occasions for purposes of classification of goods in Heading 9505”).

But see Pl.’s Brief at 19; Pl.’s Reply Brief at 15 n.7.

Court No. 00-11-00528 Page 35

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

28

See also Park B. Smith, 347 F.3d at 929 (referring to articles with a “holiday association,”

“articles with symbolic content associated with a particular recognized holiday,” articles that “are

not associated with a particular festive holiday,” articles not directed to “specific holiday festivals,”

“articles that might be associated with a particular holiday,” whether use of articles “at times other

than holidays would not be aberrant,” and whether articles are “directed to a specific festive holiday,

and whether their use at times other than that holiday would be aberrant”) (emphases added).

Court No. 00-11-00528 Page 36

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 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

29

Further, it appears that the Court of Appeals used “holiday” interchangeably with the term

“particular festival” – which is the term used in the Explanatory Notes to heading 9505. See Park

B. Smith, 347 F.3d at 929 (“The general autumnal colors or other seasonal association do not invoke

a particular festival.”; “In view of these rulings, [Plaintiff’s] cross appeal as to the third category

must fail, for these three items are not associated with a particular festival.”) (emphases added).

Court No. 00-11-00528 Page 37

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: “<raise 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 Inc. 1983).

Court No. 00-11-00528 Page 38

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 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)

30

The Gage dictionary is the principal lexicographic authority used by the Canadian

Government Translation Bureau for purposes of official state business. See Wilton-Canada II, AP-

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

31

In Nicholson II, the Canadian International Trade Tribunal held that the “festive occasions”

within the scope of heading 9505 include not only birthdays, but also – for example – “other joyous

events in a child’s life,” such as “a child’s soccer party” or “a child obtaining a good report card.”

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

Court No. 00-11-00528 Page 39

(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

There is, however, no need here to reach the issue of the outer limits of the non-holiday

events and occasions within the embrace of “festive occasions” for purposes of heading 9505. All

the non-holiday merchandise in this action is assertedly associated with either weddings and

anniversaries, or birthdays – occasions comfortably within any reasonable definition of a “festive

occasion.”

32

See also Def.’s Supp. Brief at 9 (conceding that “some countries may consider birthdays

to be ‘festive occasions’”).

In addition to citing the Canadian decisions discussed above, both parties submitted for the

record in this action summaries of various customs rulings from the European Union, drawn from

the Binding Tariff Information (“BTI”) database. Like the Canadian decisions above, a number of

the BTIs evidence other countries’ treatment of non-“holiday” special occasions as “festive”

occasions for purposes of heading 9505.

The BTIs submitted by both Wilton and the Government include GB [Great Britian]

105198189 (May 26, 2000) (multi-colored confetti spelling out “congratulations” classified under

heading 9505); DEB/2140/04-1 [Germany] (December 22, 2004) (garland spelling out “Happy

Birthday” classified under heading 9505); and GB 106575082 (May 17, 2001) (edible decorations

for birthday cake classified under heading 9505). In addition, the Government submitted BTI

DEB/1232/04-1 (wooden miniature train candle holders, and numbers 1 through 6, for use in

decorating birthday cakes, classified under heading 9505).

To be sure, as noted in section III.A above, U.S. courts are not bound even by the decisions

of foreign tribunals, much less those of the administrative authorities of those countries. Such

decisions may, however, be entitled to “respectful consideration.” And there is merit in promoting

uniformity and predictability in international trade and commerce, where possible. See generally

Cummins, 29 CIT at ____, ____, 377 F. Supp. 2d at 1368-69, 1375-76, aff’d, 454 F.3d 1361, 1366.

33

Although not necessarily for this specific point, the Government did submit for the record

some BTIs in which countries classified certain merchandise under headings other than 9505. But

such classification does not necessarily indicate that the countries in question limit classification

under heading 9505 to only that merchandise associated with recognized “holidays.”

To be classifiable under heading 9505, merchandise must be determined to be “Festive,

carnival or other entertainment articles . . . .” See Heading 9505, HTSUS (emphasis added). Thus,

Court No. 00-11-00528 Page 40

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 #

a country’s classification of assertedly “festive” merchandise under heading 9505 indicates that the

country in question treats as a “festive occasion” that special occasion with which the merchandise

is associated – whether that special occasion is a “holiday” or not.

In contrast, the classification of merchandise under some heading other than heading 9505

does not necessarily indicate that the authorities in the country at issue do not treat as a “festive

occasion” the non-“holiday” special occasion (such as a birthday) with which the allegedly “festive”

merchandise is associated. For example, the classification may mean simply that – although the

country recognizes birthdays and other non-“holiday” special occasions as “festive” occasions for

purposes of heading 9505 – the relevant customs authorities determined that the symbolic content

of the particular merchandise was not sufficiently closely identified with the non-“holiday” festive

occasion.

34

See also Pl.’s Brief at 19 n.4 (noting that “the Stipulation filed in this case provides for the

classification as ‘festive articles’ of Heading 9505 of many articles designed for use in connection

with birthdays, weddings and other private festive occasions”), 21 (same); Pl.’s Reply Brief at 2

(same).

Court No. 00-11-00528 Page 41

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 within the

scope of HTSUS heading 9505 are limited to “recognized” holidays. At a minimum, special

35

In light of the position that the Government takes in its briefs filed with the Court, the basis

for the Government’s agreement to the classification of other merchandise subject to the Stipulation

is similarly unclear – Wilton’s Carousel Separator Topper Set (item # 2103-1139), Wilton’s Circus

Balloons Topper Set (item # 2113-2366), Wilton’s Pooh Pick (item # 2113-3000), Wilton’s Mickey

Pick (item # 2113-3600), and Wilton’s Teen Doll Pick - Brunette (item # 2815-101), to name a few.

Indeed, a review of the list of the more than 120 items classified as “festive articles” pursuant to the

parties’ Stipulation suggests that the sole item with symbolic content that is obviously associated

with a recognized “holiday” is Wilton’s “Glowing Pumpkin Fun Pix” (item # 2113-1287), which

depict smiling Halloween jack-o-lanterns.

The Government’s claim that “private festive celebrations” such as birthdays, weddings,

anniversaries, and graduations are not “festive” occasions for purposes of heading 9505 also cannot

be reconciled with Customs’ classification determinations in certain other cases. See, e.g., NYRL

A80948 (April 2, 1996) (cited in Pl.’s Protest at 11) (classifying “wedding cake ornaments/tier

toppers” as “festive articles” for purposes of heading 9505). But see NYRL J89592 (Oct. 29, 2003)

(stating that “weddings are not regarded as festivals or holidays” for purposes of heading 9505).

36

The Government takes strong exception to Wilton’s reliance on the parties’ Stipulation to

support its claim that “festive” occasions under heading 9505 are not limited to recognized

“holidays.” See Def.’s Brief at 18 n.11; Def.’s Supp. Brief at 8-9. The Government’s objections are

largely lacking in merit, however. In any event, quite apart from the Stipulation, Wilton’s point is

proved by the drafters’ choice of the term “festive” (rather than “holiday”), and by dictionary

definitions of the term“festive.”

Court No. 00-11-00528 Page 42

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

Court No. 00-11-00528 Page 43

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

37

Although they are expressly not cited to support Customs’ claim to Skidmore deference,

the Government did append to its opening brief copies of eight Customs ruling letters. Two of the

eight ruling letters are cited to show that “Customs has interpreted subheading 9505.90.40 to cover

single use, disposable party goods.” See Def.’s Brief at 17 n.10 (citing NYRL G81888 (Sept. 29,

2000); NYRL D83845 (Nov. 18, 1998)). The other six ruling letters are cited to illustrate that

“Customs has classified toy figures used to decorate a cake but which could be retained by the

consumer for lasting entertainment purposes . . . as ‘dolls’ in Heading 9502 or as ‘other toys’ in

Heading 9503.” See Def.’s Brief at 27 n.17 (citing HQ 954996 (April 15, 1994); HQ 954997 (July

1, 1994); HQ 954998 (July 1, 1994); HQ 954999 (June 24, 1994); HQ 954616 (May 10, 1994);

NYRL 804188 (Dec. 15, 1994)).

But even if those eight ruling letters were the ones on which the Government was relying to

support Customs’ claim to deference here, that reliance would be in vain.

As the dates of the ruling letters indicate, all but two antedate the decisions of both this court

and the Court of Appeals in Midwest of Cannon Falls, a case that the Government itself has labeled

“seminal.” See Def.’s Brief at 10. And the two ruling letters that were issued after Midwest of

Cannon Falls do not mention (or even reflect the teachings of) the Court of Appeals in that case.

See NYRL G81888 (Sept. 29, 2000); NYRL D83845 (Nov. 18, 1998).

All eight of the ruling letters attached to the Government’s brief deal with cake decorations.

See NYRL G81888 (American flag picks); NYRL D83845 (wedding cake topper); HQ 954996 (teen

boy and girl cake toppers); HQ 954997 (“Walking Waldo” cake topper); HQ 954998 (assorted cake

Court No. 00-11-00528 Page 44

toppers of “Garfield” figure attired for various sports); HQ 954999 (cake toppers of Jasmine on

Rajah the Tiger and Genie with Aladdin on a Carpet); HQ 954616 (Beauty and the Beast cake

toppers); NYRL 804188 (Power Ranger cake toppers). As Wilton notes, however, none of those

items is similar to the merchandise still in dispute in this action. See Pl.’s Reply Brief at 19

(asserting that Government “has not pointed to one ruling . . . [involving merchandise that] closely

resembles the merchandise” in this action).

Nor does a review of the ruling letters suggest that there are to be distilled from them any

general principles with real relevance to the facts of this case. Indeed, two of the ruling letters

include no rationale whatsoever. They state simply that the merchandise and the parties at issue are

the same as those in a prior ruling, and endorse that prior ruling. See HQ 954997; HQ 954998. A

third letter includes no analysis of heading 9505. See HQ 954999.

Several of the remaining ruling letters indicate that cake decorations within the scope of

heading 9505 must be “inexpensive,” “flimsy,” and for one-time use. See NYRL D83845; HQ

954996; HQ 954616; NYRL 804188. However, Customs did not deny Wilton’s Protests on the

grounds that the merchandise at issue was durable or expensive, and the Government has not

challenged any specific item remaining at issue in this action on such grounds. Nor could the

Government do so. The record as to Wilton’s wedding merchandise (including the Cherub Place

Card Holders) and its cake press sets indicates to the contrary. See, e.g., Pl.’s Reply Brief at 16-17

(noting that wedding items “are mainly plastic and are not intended to be used again – they are

inexpensive and relatively cheap items”); Pl.’s Supp. Reply Brief at 5 (noting that wedding items

“are one-time use and are generally thrown away after the wedding or anniversary”); Pl.’s Exhs.

(some of which list the very modest prices of items at issue, as well as the prices of other

merchandise comparable to that at issue). More importantly, the Court of Appeals has flatly rejected

Customs’ attempts to exclude merchandise from classification under heading 9505 based on its

durability and value. See Midwest of Cannon Falls, 122 F.3d at 1428. Cf. Nicholson II, AP-97-110

& AP-97-113 (CITT Sept. 2, 1998) (holding that “goods do not necessarily have to be made of non-

durable material” to be classifiable as “festive articles” under heading 9505).

It is similarly irrelevant that six of the ruling letters indicate that “Customs has classified toy

figures used to decorate a cake but which could be retained by the consumer for lasting

entertainment purposes . . . as ‘dolls’ in Heading 9502 or as ‘other toys’ in Heading 9503.” See

Def.’s Brief at 27 n.17 (citations omitted). The merchandise still at issue includes no figurines used

to decorate cakes. The Government does not contend otherwise. See Def.’s Brief at 26 (stating that

“[n]one of the articles at issue here are ‘figurines,’ and the articles at issue here have a function other

than as ‘cake decorations’”). Nor was any of the merchandise still at issue liquidated by Customs

either as “dolls” under heading 9502 or as “other toys” under heading 9503. Cf. Def.’s Supp. Brief

at 6 (asserting that none of the articles at issue have “toy-like amusement qualities”).

Court No. 00-11-00528 Page 45

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

In addition, two of the Customs rulings recite the fact that the Explanatory Notes to heading

9505 expressly refer to cake decorations, but fail to acknowledge that such decorations are limited

to those “traditionally associated with a particular festival.” See NYRL G81888; NYRL D83845.

It is impossible to tell from a reading of those rulings whether Customs’ analysis there simply

suffered from a lack of rigor, or whether – more fundamentally – the agency was taking the position

that all cake decorations were classifiable under heading 9505, without regard to their association

with a “particular festival” (provided that the decorations were flimsy, inexpensive, and disposable).

Both possibilities are troubling – particularly since two of the key issues in this case deal directly

with that particular limitation (i.e., whether or not “particular festival[s]” are restricted to recognized

“holidays,” and whether certain motifs are “closely associated with” festive occasions within the

scope of heading 9505).

Further, the only ruling of the eight that found merchandise classifiable under heading 9505

– the ruling on the American flag picks – fails to indicate which “festive” occasion Customs found

that merchandise to be “closely associated with.” See NYRL G81888. That failing is all the more

troubling because the ruling postdates Midwest of Cannon Falls. The only other ruling letter that

postdates Midwest of Cannon Falls concerned a wedding cake topper. As noted above, that ruling

too is conspicuously silent as to requirement of a “close association with” a specific festive occasion.

See NYRL D83845. Thus, Customs there denied classification under heading 9505 not because the

agency interpreted the heading to exclude wedding-related merchandise (the position that the agency

has taken in this case), but – rather – because the wedding cake topper was not flimsy, inexpensive,

and disposable. Id. The coup de grace here is NYRL A80948, cited in Wilton’s Protest. See Protest

at 11-12 (citing NYRL A80948 (April 2, 1996)). In that ruling, Customs classified a wedding cake

topper under heading 9505. Quite apart from the merits of the numerous other criticisms listed

above, that ruling would alone suffice to lay to rest the Government’s claim that Customs has had

a consistently held position on the classification of cake decorations as “festive articles” under

heading 9505.

Court No. 00-11-00528 Page 46

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”). 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,

38

See, e.g., Park B. Smith, 25 CIT at 508 n.1 (criticizing Customs publication and castigating

the agency for its “inexcusably irresponsible attempt . . . to present to the public its two-

dimensional/three-dimensional distinction theory as the current state of the law after Midwest”),

aff’d in part, rev’d in part, and remanded, 347 F.3d at 929 (firmly rejecting, inter alia, the “two-

dimensional” versus “three-dimensional” distinction that Customs and Government sought to draw).

39

Customs’ denial of Wilton’s Protest also predated even this court’s opinion in Park B.

Smith, and thus – by definition – did not reflect the gloss that the Court of Appeals’ opinion in that

case added to Midwest of Cannon Falls.

Court No. 00-11-00528 Page 47

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.

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

40

Until expressly requested to do so, neither party ever identified any items of merchandise

at issue as sets, much less briefed the issue of the classification of such merchandise –

notwithstanding ample opportunity through two full rounds of initial briefing, followed by oral

argument and another two additional rounds of post-oral argument supplemental briefing. See

generally Pl.’s Response to the Court’s Letter of May 7, 2007 at 4-8; Letter to Court from Counsel

for Plaintiff (May 15, 2007); Letter to Court from Counsel for Defendant (May 16, 2007).

Court No. 00-11-00528 Page 48

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 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

41

The Explanatory Notes to GRI 3(b) explain that – for purposes of that rule – “goods put up

in sets for retail sale” means goods which “consist of at least two different articles which are, prima

facie, classifiable in different headings. Therefore, for example, six fondue forks cannot be regarded

Court No. 00-11-00528 Page 49

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

“[d]iscernment” 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.

as a set within the meaning of this Rule.” See Explanatory Note X, GRI 3(b), HTSUS.

Court No. 00-11-00528 Page 50

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.

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

42

Incredibly, although their briefs are replete with casual, offhand (and generally conclusory)

assertions as to whether or not a particular symbol or motif is “closely associated with” a particular

“festive” occasion, neither party systematically briefed the motifs and symbols at issue in this action.

Court No. 00-11-00528 Page 51

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

½" Heart Separator Plate (item # 302-2118), the 8 ½" Oval Separator Plate (item # 302-2130), the

11 ½" Oval Separator Plate (item # 302-2131), the 14 ½" 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

Accordingly, the Court has been forced to scour both the caselaw in general and the evidence

of record here, in an effort to remedy the shortcomings of the parties’ briefs and to dispose of the

pending cross-motions. Under the circumstances, however, any attempt by either party to raise on

appeal an issue concerning symbols and motifs should meet with skepticism and should be

scrutinized closely.

Court No. 00-11-00528 Page 52

Pillars (item # 303-2322), the 9" Crystal-Look Spiked Pillars (item # 303-2324), the 6 ½" 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-1.43

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

43

As the Government correctly observes, both the original and the amended versions of

Plaintiff’s Exhibit B-1 mistakenly list three articles (with three different item numbers) which are

actually covered by the parties’ Stipulation, and thus are no longer in dispute. See Def.’s Response

to Pl.’s Statement of Material Facts ¶ 5; Stipulation (item # 303-2171; item # 303-2196; item # 303-

2197); Pl.’s Amended Exh. B-1 (same item numbers); Pl.’s Exh. B-1 (same item numbers).

44

No one speaks of an assembled multi-tiered wedding cake as “wedding cakes” (plural).

Instead, the creation is viewed as a whole – “the wedding cake.”

45

The fact that numerous different styles of separator plates, pillars and columns, and plate

legs are offered for sale is further proof of their decorative nature. See generally section I.A, supra

(highlighting various styles of merchandise offered for sale). Presumably, if the appearance of the

separator plates, pillars and columns, and plate legs were of no significance, there would be no

reason to offer more than a single style.

Court No. 00-11-00528 Page 53

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

46

The Government itself describes as “cake decorations” the merchandise that is the subject

of the parties’ Stipulation. See Def.’s Supp. Brief at 9. And, as discussed in greater detail below,

much of that merchandise is virtually identical to the wedding cake separator plates, pillars and

columns, and plate legs still at issue.

47

Nowhere in its briefs does the Government dispute that the separator plates, pillars and

columns, and plate legs reflect a “bridal” or “nuptial” motif. Nowhere does the Government suggest

that the separator plates, pillars and columns, and plate legs are not obviously wedding merchandise.

See, e.g., Def.’s Brief at 5 (noting that “the parties agree that the imported merchandise consists of

wedding cake pillars, separator plates, cake bases, [and] plate pegs . . . ”; and “[t]he parties agree that

the wedding cake separators, plate pegs, and pillars are used to separate segments of a wedding cake

which is comprised of several tiers.”) (emphases added). Nor does the Government anywhere

dispute that it would be clearly aberrant to use the merchandise other than for a tiered wedding-style

cake.

48

Indeed, as Wilton points out, a multi-tiered cake is served only on an occasion such as a

wedding, when a very large cake is needed because there are a very large number of guests. See

Pl.’s Reply Brief at 16; Pl.’s Supp. Reply Brief at 4.

Court No. 00-11-00528 Page 54

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 I, 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

Court No. 00-11-00528 Page 55

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 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).

49

The Government states that Customs agreed to stipulate to the classification of “numerous

cake decorations which are single use, disposable party goods.” See Def.’s Brief at 17 n.10.

However, rather than attempting to factually distinguish the stipulated merchandise from that

remaining at issue, the Government simply states summarily that “the articles which are before the

Court in the parties’ cross-motions are not single-use, disposable party goods.” Id.; see also id. at

18 n.11 (asserting in conclusory fashion that “the merchandise which the parties have proposed for

stipulation and those articles which remain at issue are, simply put, not identical or substantially

similar enough to justify the same classification”); Def.’s Supp. Brief at 8-9 (asserting that “unlike

the article which the parties have agreed to stipulate, the articles . . . in the parties’ cross-motions

are not single use, disposable party goods”).

Court No. 00-11-00528 Page 56

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 ½" Heart Separator Plate, the 8 ½" Oval Separator Plate, the 11 ½" Oval Separator

Plate, the 14 ½" 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,

Court No. 00-11-00528 Page 57

the 9" Crystal-Look Spiked Pillars, the 6 ½" 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 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,

Court No. 00-11-00528 Page 58

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

50

As discussed in section III.A above, the Government in this litigation has sought to rely on

the 2003 amendment to the Explanatory Notes to heading 9505 to support its argument that

“utilitarian” or “functional” merchandise is not classifiable under that heading.

It is worth noting that the 2003 amendments expressly refer to table decorations. See

Explanatory Notes, Heading 9505, HTSUS, at xx-9505-1 (2007) (reflecting 2003 amendment)

(indicating that scope of heading 9505 includes “[f]estive decorations used to decorate rooms, tables,

etc.”) (emphasis added). To that extent, the 2003 amendment to the Explanatory Notes may buttress

Wilton’s claim that its Cherub Place Card Holders – which serve both to designate wedding guests’

seating assignments and to decorate wedding reception tables (while complementing other elements

of the design and ambience of the event) – are classifiable as “festive articles” within the scope of

heading 9505, even under the terms of the Explanatory Notes prior to the 2003 “clarifying”

amendments.

Court No. 00-11-00528 Page 59

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

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

51

As noted elsewhere above, the Government repeatedly asserts that this action is ripe for

summary judgment. It nevertheless seems to quibble with Wilton’s statement that a cherub is a

motif closely associated with weddings. See Def.’s Response to Pl.’s Statement of Facts ¶ 7

(denying “that a ‘cherub’ is ‘a typical romantic theme featured at wedding or anniversary

celebrations’”). The Government proffers not a scintilla of evidence to support its position,

however. See Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390-91 (Fed. Cir. 1987)

(“[m]ere denials or conclusory statements are not sufficient” to put a material fact into dispute). Nor

does the Government attempt to distinguish between the cherub motif of the Cherub Place Card

Holders and the cherub motif of the Harvest Cherub Separator Set, the classification of which it has

stipulated. Similarly, it offers no explanation for the numerous other wedding items reflecting some

sort of cherub motif which are offered by Wilton, and which constitute additional evidence

supporting Wilton’s position.

52

Whether or not the use of a plain cherub motif alone would be “aberrant” at times other

than a wedding or anniversary, the use of the motif as incorporated into the item here at issue – a

classically-styled cherub, rendered as a (disposable) place card holder, with its arms outstretched

precisely for the purpose of holding a standard-sized seating place card – is limited to weddings and

anniversaries. See Pl.’s Reply Brief at 16 (by definition, place card holders used for weddings –

romantic, large-scale events “with tens or hundreds of guests”). The use of the Cherub Place Card

Holders on other occasions would be “aberrant.” Thus, for example, as Wilton wryly observes, the

Cherub Place Card Holders would not be used to indicate the seating arrangements at a corporate

board meeting. See Pl.’s Brief at 19-20.

Although the Government insists that weddings are not “festive” occasions for purposes of

heading 9505, nowhere does the Government suggest that the Cherub Place Card Holders are not

obviously wedding merchandise. See, e.g., Def.’s Brief at 18-19 (emphasizing that Wilton “admits”

that Cherub Place Card Holders are used for weddings, and arguing that weddings are not “festive”

occasions under heading 9505); Def.’s Reply Brief at 3 (emphasizing that Wilton has “admitted” that

Court No. 00-11-00528 Page 60

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

Cherub Place Card Holders are used for weddings, and arguing that weddings are not “festive”

occasions under heading 9505). Nor does the Government anywhere dispute that it would be clearly

aberrant to use the Cherub Place Card Holders other than for a wedding or similar celebration.

53

The Government erroneously asserts that the cake press sets at issue “include letters

(italics, block and script) . . . which can be used to decorate any cake for any purpose.” See Def.’s

Response to Pl.’s Statement of Facts ¶ 10 (emphases added). The Government is simply flat wrong

on the facts as to the nature of the merchandise.

The cake press sets at issue include no individual letters whatsoever. They consist entirely

of words and two or three-word phrases. There is thus no truth to the Government’s claim that the

press sets can be used to decorate any cake “for any purpose.” The press sets cannot be used, for

example, to spell out “Have a Great Day!” And it would be patently “aberrant” to use a Wilton cake

press to decorate “any cake [to be used] for any purpose” with the greeting “Merry Christmas” (one

of the greetings included in the cake press sets at issue here). Such a greeting would be appropriate

only on a cake served during the Christmas season.

Court No. 00-11-00528 Page 61

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. 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.

54

As discussed in section III.C above, tariff terms such as “decoration” are construed

according to their common and commercial meanings, which are presumed to be the same. And the

meaning of such terms may be discerned by consulting dictionaries and other reliable sources of

information. See, e.g., Warner Lambert Co., 407 F.3d at 1209 (citation omitted).

55

There are essentially two ways of decorating a cake with a celebratory message or

sentiment. The cake may be decorated with edible or non-edible lettering that is left on the cake

when the cake is presented, spelling out the message or sentiment. Alternatively, a cake press can

be used to imprint the celebratory message or sentiment into the frosting of the cake itself.

There would seem to be little doubt that the lettering in the first case would be considered

“cake decorations” within the meaning of the Explanatory Notes to heading 9505. And it is unclear

whether a reasonable, logical distinction can be drawn between the lettering in the first case and the

lettering in the second case – particularly where, as here, the lettering in the second case is one-time

use, disposable merchandise.

Court No. 00-11-00528 Page 62

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 motifs “closely associated with” non-holiday “festive” occasions including

birthdays, weddings, anniversaries, and baptisms or First Communions.57

56

As discussed above, this publication has been withdrawn by Customs (largely because the

publication espoused the “two-dimensional” versus “three-dimensional” distinction that has now

been thoroughly discredited by the courts). See generally section III.D, supra. However, the

publication retains vitality as evidence of symbols and motifs that Customs has recognized are

“closely associated with” “festive” occasions for purposes of heading 9505.

57

Specifically, the Script Message Press Set includes presses of the words and phrases “Best,”

“Wishes,” “Happy,” “Birthday,” “Anniversary,” and “Congratulations.” The Block Letter Press Set

includes presses of the same words – “Best,” “Wishes,” “Happy,” “Birthday,” “Anniversary,” and

“Congratulations” – in block letters, rather than script. And the All-Occasion Script Message Press

Set includes presses of “Merry Christmas,” “Happy New Year,” “Easter,” “Thanksgiving,” “God

Bless You,” “I Love You,” and “Good Luck.” See Pl.’s Exh. G-2.

Court No. 00-11-00528 Page 63

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

58

The result – classification of the cake press sets under heading 9505 – would be the same

if each of the three items were analyzed as a set and classified in accordance with its “essential

character” pursuant to GRI 3(b). See generally section III.E, supra. The very nature of the cake

press sets, and the way in which they are marketed by Wilton and the retailers to which Wilton sells

them, are compelling evidence that it is the association between the content of the

greetings/sentiments and the “festive” occasions to which they are related that is the basis for a

consumer’s decision to purchase such sets. See Better Home Plastics, 20 CIT at 224, 916 F. Supp.

at 1267; Conair Corp., 29 CIT at ____, 2005 WL 1941649 at * 5 - * 6.

Similarly, even if one or two of the individual words or phrases in a cake press set were

found not to be prima facie classifiable as “festive articles” under heading 9505, the remainder of

the words and phrases in the set would impart the “essential character” of the set as a whole – at

least under the circumstances presented here (where, inter alia, the items are marketed specifically

for “cake decorating” and most of the presses are, by definition, limited to use solely on “festive”

occasions). See generally Letter to Court from Defendant (May 16, 2007) at 3 (citing Explanatory

Note X, GRI 3(b), HTSUS (discussing example of classification of “[d]rawing kits”)).

Court No. 00-11-00528 Page 64

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 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-1; Pl.’s Amended Exh. F-1.

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

Court No. 00-11-00528 Page 65

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 conjuncti

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