CLA-2 OT:RR:CTF:TCM H233999 EGJ
Robert D. Stang, Esq.
Husch Blackwell LLP
750 17th Street NW
Suite 900
Washington, D.C. 20006-4656
Re: Tariff Classification of the Doodle Buddy
Dear Mr. Stang:
This is in response to your request on behalf of Spin Master Ltd., dated September 24, 2012, to U.S. Customs and Border Protection (“CBP”) for a binding ruling on the tariff classification of the Doodle Buddy under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
All Aquadoodle products include a fabric mat and a plastic pen to be filled with water. The mat is constructed of a surface washable material incorporating a hydrochromatic ink that changes color when the user draws on the mat with the water filled pen. The drawings typically remain on the mat for approximately ten minutes before gradually disappearing as the water dries. Since the drawings disappear, the mat can be continually reused. The top of the water pen unscrews so that the pen can be refilled.
The subject merchandise is the Doodle Buddy. The Doodle Buddy is a stuffed animal (penguin, dog or bear) approximately eleven inches in length and ten inches in width featuring brightly colored fabrics (purple, yellow, red, blue and orange) and a front panel consisting of an Aquadoodle mat. The stuffed animal is holding an Aquadoodle water pen at retail sale.
ISSUE:
Is the Doodle Buddy classified as a toy of heading 9503, HTSUS, or as a made-up textile article of heading 6307, HTSUS?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
The HTSUS headings under consideration are the following:
6307 Other made up articles, including dress patterns …
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9503 Tricycles, scooters, pedal cars and similar wheeled toys; dolls’ carriages; dolls, other toys; reduced-scale (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof…
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Note 1(t) to Section XI, which includes Chapter 63, states that:
1. This section does not cover:
(t) Articles of chapter 95 (for example, furniture, bedding, lamps and lighting fittings) …
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Note 3 to Chapter 95 states that:
3. Subject to note 1 above, parts and accessories which are suitable for use solely or principally with articles of this chapter are to be classified with those articles …
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Additional U.S. Rule of Interpretation 1(a), HTSUS, provides that:
1. In the absence of special language or context which otherwise requires:
(a) a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use.
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The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN 95.03(D) states, in pertinent part:
Other toys.
This group covers toys intended essentially for the amusement of persons (children or adults)….
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Note 1(t) to Section XI excludes articles of Chapter 95 from classification in Section XI. Section XI includes Chapter 63. If the Doodle Buddy is classifiable in Chapter 95, it cannot be classified in Chapter 63. Furthermore, under Note 3 to Chapter 95, if the water pen is an accessory to the Doodle Buddy, the entire good is classified as a toy of heading 9503, HTSUS, by application of GRI 1. As such, we will first determine whether the Doodle Buddy can be classified in heading 9503, HTSUS, as a toy.
Heading 9503 provides, in pertinent part, for “other toys.” In Minnetonka Brands v. United States, 110 F. Supp. 2d 1020, 1026 (Ct. Int’l Trade 2000), the U.S. Court of International Trade (CIT) determined that a toy must be designed and used principally for amusement and should not serve a utilitarian purpose. Thus, the CIT concluded that heading 9503, HTSUS, is a “principal use” provision within the meaning of Additional U.S. Rule of Interpretation 1(a) (AUSR 1(a)), HTSUS. Id.
Applying AUSR 1(a), the Doodle Buddy must belong to the same class or kind of goods which have amusement as a principal use, i.e. toys. To determine whether an article is included in a particular class or kind of merchandise, CBP considers a variety of factors, including: (1) the general physical characteristics of the merchandise; (2) the channels, class or kind of trade in which the merchandise moves (where the merchandise is sold); (3) the expectation of the ultimate purchasers; (4) the environment of the sale (i.e., accompanying accessories and marketing); (5) usage, if any, in the same manner as merchandise which defines the class. See United States v. Carborundum Co., 536 F.2d 373, 377 (Cust. Ct. 1976).
First, we will examine the physical characteristics of the merchandise. We note that the Doodle Buddy is a stuffed animal. The Doodle Buddy’s belly consists of an Aquadoodle Mat. Next, we note that the environment of sale includes the product’s packaging. The hang tag on the Doodle Buddy explains that any doodles or drawings made with the water pen will evaporate as the water dries. As such, the consumer can expect that any doodles or drawings are only temporary. The Doodle Buddy does not create lasting drawings, nor does it teach the consumer how to draw. The purpose of the Doodle Buddy is to amuse the consumer with its disappearing drawings.
CBP has issued rulings on products similar to the Doodle Buddy. In New York Ruling Letter (NY) N050939, dated February 19, 2009, CBP classified the “Tadoodles Ta-Doodler” under heading 9503, HTSUS, as a toy. The Tadoodles Ta-Doodler was a partially stuffed green bear with a white plastic stomach. It also included three crayons for drawing on the bear’s stomach. The drawings could be erased by wiping the bear’s stomach with a damp cloth. In NY M81660, CBP classified the Doodle Pet Set as a toy under heading 9503, HTSUS. The Doodle Pet Set consisted of a stuffed dog, a cotton carrying bag and 2 washable markers. The consumer could draw on the dog, then machine wash the dog and draw on it again. See also NY M80300, dated February 24, 2006, NY A84178, dated June 4, 1996, NY 815844, dated October 18, 1995 and NY 892926, dated December 27, 1993.
Also, the ruling request includes advertising materials for the Doodle Buddy. The materials show that the Doodle Buddy is sold by Toys”R”Us and is categorized as a toy on sales websites such as ebay.com. The ruling request also included photographs of the Doodle Buddy on retail shelves at Target, Wal-Mart and Target among other toy products.
After applying the Carborundum factors, we find that the Doodle Buddy is in the same class or kind of goods as other toys. 536 F.2d at 377. As such, the Doodle Buddy is classified as a toy under heading 9503, HTSUS. Next, we must determine the tariff classification of the water pen.
In Rollerblade, Inc. v. United States, the U.S. Court of International Trade (CIT) sets forth the definition for an accessory to an article. 24 C.I.T. 812 (2000), aff’d by Rollerblade, Inc. v. United States, 282 F.3d 1349 (2002). The CIT cites with approval CBP Headquarters Ruling Letter (HQ) 958924, dated June 20, 1996, which states, in pertinent part, that:
We, however, have repeatedly noted that an accessory is, in addition to being an article related to a primary article, is [sic in original] used solely or principally with that article. We have also noted that an accessory is not necessary to enable the goods with which they are used to fulfill their intended function. They are of secondary importance, not essential of themselves. They, however, must contribute to the effectiveness of the principal article (e.g., facilitate the use or handling of the principal article, widen the range of its uses, or improve its operation). We have also noted that Webster's Dictionary defines an accessory as an object or device that is not essential in itself but adds to the beauty, convenience, or effectiveness of something else. Id. at 816 citing Webster's New World Dictionary of the American Language 4 (2d Concise Ed. 1978).
The CIT also agrees with CBP’s assertion that an "'‘[a]ccessory' is not defined as something that is merely intended to be used at the same time as something else; accessories must serve a purpose subordinate to, but also in direct relationship to the thing they 'accessorize.'" Id. at 816-817 citing Def.'s Mot. Summ. J. at 5-6 (emphasis in original). As such, an accessory must have a direct relationship to the article it accessorizes. Moreover, the accessory must serve a purpose subordinate to the article’s purpose. Finally, while an accessory is not essential to the article, it should add to the beauty, convenience or effectiveness of the article.
While the Doodle Buddy is an amusing stuffed animal without the water pen, it is marketed as a doodling toy. The only way to draw on the Doodle Buddy is with the water pen. As such, the water pen has a direct relationship with the Doodle Buddy. The water pen also adds to the effectiveness of the Doodle Buddy, as the water pen creates drawings which evaporate after ten minutes. The purpose of the Doodle Buddy is amusement, largely achieved by drawing pictures and watching them vanish. As such, we find that the water pen is an accessory to the Doodle Buddy.
Moreover, we find that the water pen is solely used with the Doodle Buddy. It is specially designed for drawing in water on the Doodle Buddy’s belly. The belly changes color when it comes in contact with water. The water pen has no other use. According to Note 3 to Chapter 95, the water pen is classified under heading 9503, HTSUS, together with the Doodle Buddy.
As the Doodle Buddy and the water pen are classified under heading 9503, HTSUS, as toys, Note 1(t) to Section XI precludes them from classification in Chapter 63. For all of these reasons, we find that the Doodle Buddy and water pen are properly classified as toys of heading 9503, HTSUS.
HOLDING:
By operation of GRI 1 (Note 1(t) to Section XI and Note 3 to Chapter 95) and AUSR 1(a), the Doodle Buddy and its water pen are classified in subheading 9503.00.00, HTSUS, which provides for “Tricycles, scooters, pedal cars and similar wheeled toys; dolls’ carriages; dolls, other toys; reduced-scale (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof…” The 2013 column one, general rate of duty is free.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
A copy of this ruling letter should be attached to the entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.
Sincerely,
Ieva K. O’Rourke, Chief
Tariff Classification and Marking Branch