OT:RR:CTF:CPMM H285904 KSG
Susan Lagay Kay
Manager of Treasury Services
Franco Manufacturing Company, Inc.
555 Prospect Street
Metuchen, NJ 08840
RE: NY N283864; tariff classification of pillows in the form of characters in a computer game
Dear Ms. Kay:
This ruling is in reference to your request for reconsideration of New York Ruling Letter (NY) N283864, dated March 9, 2017, regarding the classification of pillows in the form of characters in a computer game under the Harmonized Tariff Schedule of the United States (HTSUS). In NY N283864, U.S. Customs & Border Protection (CBP) classified the pillows in the form of characters in a computer game under subheading 9404.90.2000, HTSUS, which provides for “Mattress supports; articles of bedding and similar furnishing (for example, mattresses, quilts, eiderdowns, cushions, pouffes and pillows) fitted with springs or stuffed or internally fitted with any material or of cellular rubber or plastics, whether or not covered: Other: Pillows, cushions, and similar furnishings: Other.”
We have reviewed NY N283864 and affirm it.
Toca Boca is a Canadian-owned Swedish game development studio focused on child-friendly applications for tablets and smartphones. Their website states that they “capture the power of play” and create digital toys “from the kid perspective.”
Two styles of pillows in the form of characters in a computer game were submitted as samples. The first style is identified as “Toca Boca-Paulina Pineapple” (Style # PC969T). It is a yellow plush flat accent pillow in the shape of a pineapple that has a green crown of leaves sewn to the top of the pillow; polyester-filled arms and legs sewn to the bottom of the pillow; and a mouth, two eyes and cheeks embroidered on its front side. The pillow has a print of tan and orange diamonds to resemble the outer layer of a pineapple and a fill of 100% polyester. This pillow is to be sold in the bedding area of a store for purposes of decorating a young child’s room between the ages of three to twelve years old.
The second style is identified as “Toca-Boca-Nimbus Cloud” (Style # PC971T);it is a grey flat accent pillow in the shape of a rainy day cloud that has an orange headband with a lightning bolt; polyester-filled arms and legs sewn to the bottom of the pillow; and a mouth, two eyes and cheeks embroidered on its front side. This pillow also has a fill of 100% polyester and is also to be sold in the bedding area of a store for purposes of decorating a young child’s room between the ages of three to twelve years old.
The HTSUS headings under consideration are the following:
9404 Mattress supports; articles of bedding and similar furnishings (for example, mattresses, quilts, eiderdowns, cushions, poufs and pillows) fitted with springs or stuffed or internally fitted with any material or of cellular rubber or plastics, whether or not covered:
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
Additional U.S. Rule of Interpretation 1(a) states, in pertinent part:
In the absence of special language or context which otherwise requires—
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.
The EN to heading 9503( D) states that this group includes dolls intended essentially for the amusement of persons ( children or adults).” Further, the EN includes “toys representing animals or non-human creatures….”
When terms are not defined in the HTSUS or the ENs, they are construed in accordance with their common and commercial meanings, which are presumed to be the same. In determining the common meaning of a term in the tariff, courts may and do consult dictionaries, scientific authorities and other reliable sources of information….Nippon Kogaku (USA), Inc. v. United States, 673 F.2d 380 ( C.C.P.A. 1982). Also see Carl Zeiss, Inc. v. United States, 195 F.3d 1375 (Fed. Cir. 1999). The EN does not define a “pillow” and heading 9404 is an eo nominee provision. Therefore, we examined the dictionary definition of a pillow. A pillow is defined by www.miriam- webster.com as “a support for the head of a reclining person.” Dictionary.com defines a pillow as a rectangular shaped article “used to cushion the head during sleep or rest.”
However, in NY N296006, dated April 27, 2018, CBP classified a stuffed plush item shaped like a minnie mouse or mickey mouse head with ears as throw or accent pillows in subheading 9404.90, HTSUS. The NY ruling differentiated sleep pillows designed for supporting the neck and/or head from throw pillows designed as a small decorative accessory or accent pillow. Both sleep pillows and throw pillows were classified in heading 9404.
In contrast, plastic bodies and heads in the shape of well-known children’s characters such as “Big Bird” and “Snoopy” used to package and sell bubble bath were held in Minnetonka Brands, Inc. v. United States, 110 F. Supp. 2d 1020 (Ct. Int’l Trade 2000), to be classified in heading 9503, HTSUS, as toys.
In Ideal Toy Corp. v. United States, 78 Cust. Ct. 28 (1977), the court stated that “when amusement and utility become locked in controversy, the question becomes one of determining whether the amusement is incidental to the utilitarian purposes, or the utility purpose incidental to the amusement.”
In applying GRI 1, we conclude that the imported articles were properly classified in heading 9404, HTSUS. The articles have a flat rectangular shape with no body, so they are not full figured or reasonably full figured. They are throw or accent pillows. Further, there was no showing that the pillows are principally designed for amusement. They are not able to be manipulated; their use is as decoration in a child’s room. Therefore, CBP was correct in not classifying these articles in heading 9503, HTSUS. The articles are a part of the outfit of a bed for a child. Any amusement garnered from the throw pillows is incidental to their primary purposes to outfit or decorate a bed. As further support for this position, the pillows are sold in the bedding department. Accordingly, we conclude that NY N283864 is correct and it is affirmed.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division