all the next case victoria's secret direct versus u s and lerner new york versus u s cases two zero one three dash one four six eight and two zero one three dash one fo to classify these products under heading sixty one fourteen the government says at issue peter shelf runs there and a chemical shell in a single garment and we believe that chapter sixty one no two a precludes the classification of articles of having six to twelve in chapter sixty one and so the first error that the trade court made was to erroneous to expand the scope of pending sixty one fourteen's to include support apparel that contain a shelf for as there is your argument that any article that provides as part of its functionality support kind of like the brazil guys would therefore all under the other similar articles part of the  no we would have to do an analysis of whether or not support was the specific function of the garment and if the specific function of the garment to support it would fall under sixty to twelve so mining as pursu his mother there's no inconsistent purpose i guess i'm finding that to be of a confusing are you saying when you say the specific function of the garment it makes it sound like you  are acquiescing to the idea that the garment could have a primary function and that it is the job to identify the primary function of the primary function support it falls and so it actually has come built into the evening gown there's no doubt that the eat the purpose of those cups is to avoid the need for bring your skin open back you can't you don't want to have your bra strap shown or miss is that suddenly now fall into the bronze garter suspenders category because it is an evening gown clearly ought to be in the evening wear category assuming there is such a thing but i mean it does just because it has additional function there's no question the purpose of those cups is support that's the only reason they're sewn into the evening but does that suddenly make it and other similar articles to brazil or suspenders garters except for a so under aves in leather you determine you have support and then you look for whether or not there's a more specific purpose that's inconsistent with that heading and i think it would be fair to say that the inconsistent and more specific purpose of the article you just described i would have to you know i'm speculating not seeing this is that it would be a dress not the sewn in to then what you have though excepted because i have to be honest with you the word inconsistent really trying to troubled me and avenues mother it didn't seem like quite frankly the right word when i think of the word inconsistent i mean at odds with wright is the sort of the opposite of you know and inconsistent didn't seem like the right word because they actually cited s g i and totes right afterwards neither of which had inconsistent purposes they know primary purposes you know and so inconsistent sort of while that is the word the court used by its own examples that followed the word it seemed to not really hold it to the sort of formal meaning that has to have a purpose that is sort of at odds with the support purpose well and again you know look let's go back to our product so our product we first a term and in very lengthy findings of fact that we had support the item that unified the heading in the district court made very specific findings to that effect yes and not only that they had a specific heading that was principal findings of fact regarding support so then they correctly cited avenues in leather where they talked about there had to be a more specific  primary purpose and the inconsistency language that you're somewhat troubled by but then they never went farther other than to say that the two purposes of our government are coverage and support they didn't say support was the primary in fact he said it is the unifying characteristic is and second whether or not your product falls or has that unifying characteristic so we determine that first part and then there's nothing that says coverage is so coverage cannot be an inconsistent purpose to the articles of heading sixty two twelve and we don't have a finding that says that coverage is an inconsistent purpose and really these are these are you what do you think consistent men and we're not here to to interpret an interpretation but would think in avenues and whether inconsistent could possibly have missed that only the cases that  it cited don't been filed in consistency in the sense of taking away from the function the function of the list of items but neither of those the the particular product at  issue in avenues well i think perhaps if we look at the other case law we might find some guidance from that when i look at s g i and sports graphics we have other cases where they found that the more specific purpose for example  the question is that in this setting is it in this other heading what rule is there for making a choice if it involves both those cases as their toes said just on the question is it in the carrying case setting forty two or two i think it is one thing and its predecessor under the ts us it's not that was not a determination made by saying it's not in this one because it's more in this one that was a second step so it's just this this question how do you decide whether it's in the particular heading and and if it seems to me the food storage purpose was not inconsistent in any sense of there than it had a significant primary use that tended to take away from its character as a carrying case you seem to be arguing a bit of more  rejecting the more than principle said we don't do that anymore we used to do that we don't do it anymore the only question is what is the unifying characteristic or to use avenues and whether essential characteristic by which i think it just meant that the the thing that defines the defining unifying characteristic of items in any particular was depends on the particular list there's no particular reason that every single heading should have exactly the same  analysis and some lists have an inherent limitation built into them and some don't as a classical right so why is this particular category not one that contains within it and inherent limitation that the overwhelming if not exclusive ordinary use of the product has no function but support you can't say that about this product we don't have any findings of fact to that effect your honor there's nothing in the record that sets that don't we have findings and especially overwhelming testimony this is a perfect dual use problem we don't have we don't have anything regarding tool use what we marketed as a shirt that happens to have a bra and that the side its own prop down specific to the product with a built in shelf from providing support that was the marketing of the scud so to answer your question he said it had its own pull down so it wasn't under the pull down for bra and it wasn't under the pulldown for teacher that's correct but that doesn't that actually does tail into judge toronto's point which is it significant animal with a dual functionality it really isn't like bra it may not be like t shirts either but it's not like bra and you just one generic has two and that's a bit important point and it has to mean if we're talking about a similar article it has to be something different than bronze ears if it was a bronze here then the ala nominee classification would encompass in all forms so when we're talking about articles that are similar to the listed items it has to be by its very nature different it can't be that was exact things it's not going to fall under the prop the bra drop down it's not a bronze here and otherwise we would argue for classification purposes it would have fallen under their  explanatory notes pursuant to you know the name thing what we've said is the uniting feature of those articles is support and our garments are similar to those articles different providers of uniting creature supports and in ordinary use pretty much nothing but support that is that the uniting feature here and i think this is true of all of the items and here comes with a ceiling it's not just the floor support plus anything it's got  people wear suspenders was of their evidence i mean when i look at the district court's decision it seems that he says and cites to the record that there's a preponderance of the evidence introduced if the court finds that the broad top is designed to provide shell that the top includes is absolutely not as supportive as a normal brasier and that therefore only for an end user who doesn't need as much support would satisfy both roles and i thought there was actually record testimony to that effect and that there may well be women who wear it in addition to a profit it wouldn't have otherwise provided them with an equal amount of support if they needed that i believe that was the government's overall legal errors that we believe that the court made regarding it just i'm generis and expanding the heading of sixty one of fourteen to include an article of support which is in contradiction to two way to chapter more importantly open in future cases or are they bound forever after now to pressure to take the classification including in a importation by somebody other than the two opponents here well i would certainly love if the government was bound forever to that however you're under no every importation stands on its own so under jarvis clarke the court will always have a duty to determine what the correct classification a product is before it's not being said this is a very important issue for both the korea whether that precludes us from looking at it i mean it or i don't know what would and does it preclude the government from arguing that in the future with other and forts of identical characteristic honor may please record and i appreciate the questions we did not we agreed upon during trial and also with additional information we came to the conclusion that a tank top is a very specific type of war and the article at issue in this case although the the entry papers indicated that they were this was a tank with a built in shells from we believe that may have triggered people believing it was actually a tank to tank top is a very specific article of clothing where the shoulders are actually built into the body of the clothing so we believe that this was once we had that information and we had experts who heard testimony that it was not in fact a sixty one zero nine tank top so we did not appeal that we believe those cases where you just didn't take it up to the solicitor to get permission to cross appeal this is a case in which you actually concluded that the lower court ended up reaching the right conclusion that's correct your honor we came to the conclusion that the victoria secret government is essentially the same as the learner garment in the sense that it was in a tank top in fact we've turned to the dictionary fashion and there is a definition of tank  it's similar to men's undershirt with you neckline people armholes shaped toward sold or sold or to form narrow straps so it actually is the body of the garment itself that then is knit it in such a fashion that it shapes to turn to explore this you realize that sixty one zero nine which covers t shirts vests and tank tops also has and other similar garments provisions i'm going to be honest with you i am completely baffled by your argument i don't see how these chemicals are not tank top under at least the other similar garments provision because they look and they smell awful lot like tank tops a lot more than they do like rods to me and so i am perplexed at sitting here concluding that they're not tank top or otherwise you don't tend to ever think of them that way again what about the other similar garments language why aren't they more like tank tops and they are brazil years or we think they're more like tops we just don't think their tank tops we believe the tops of some of the you don't leave their what is it ill know many or whatever the word is tank tops but with you you still have left open for yourself the ability to argue they fall into the t shirt tank top vest category at least under the other garments in the future in the future depending on the garment there's a possibility though that argument could be made but these particular gorman the the people who reviewed them came to the conclusion that they were more appropriately classified in sixty one fourteen because tank tops and similar articles seem to be different than what we were looking at with regards to these articles in the sense that similar articles may also mean being built how they're how they're designed so that they're a continuous continuous knitting here the shoulder straps are put on they're not continuous knitting with the form itself and that is why we my understanding is we've left the fact that the brought top is designed primarily to provide support with some of them by proponents of evidence what other evidence is or that the broad top was designed for something other than support your honor i don't believe that the trial court made that finding i believe the trial court made that finding with respect to the to the what they call the shelf bra insert not the entire article or that instead of page fifteen of the of the court's opinion  and said that if you take the problem here that you have is that this is a unified article this is a is a hybrid it's a new article and the court is calling it by its name calling it a brothel but when it did its an concluded that the only portion of this singular article that provides support is the answer and if if the court if it said it but it's a singular article i mean and article as a whole and i just read where the court found that the broad was designed to provide support to the bus to the extent the court said that there and then you look at then it's inconsistent with any opinion because he talks about the fact that the instead is the only portion of the garment that is providing support and again i don't i don't i don't understand that if a portion of the of the whole government does this thing then the whole government does this thing it doesn't say it at that that that's the primary support there's no where primary in here and it's a crack at the critical juncture back at what pages thirty two and thirty three the point of the c i t's decision is that when you look at the thing as a whole you cannot say that that there is no finding it is there either way about which of the two functions of this obvious dual function garment is primary the court said that the support is not the essential function so while it did not affirmatively say one thing is one thing isn't it said that the support was not the essential function of the form of the whole thing because it does because it is because the garment is a top and it is a top that's intended to be wor nine ninety seven this is how learned how lerner sell this garment with respect to online sales which apparently are for both companies a significant amount i don't know why specifically because it wasn't testimony specifically how much is sold online versus in a store but clearly they're selling it online not as intimate apparel they're selling it as part of a wardrobe as part of your clothing that what else if the rugby league they also sold panties with what they so they sold this body shape or one line and in the stores they set it in to the intimate section i guess let me put the same question to you that i put to your opposing counsel what i'm trying to figure out is an evening gown that is unequivocally designed to provide support right it would be very uncomfortable for me to think about that falling in the brazil or garter and suspenders category even though the gal in the self was designed and the portion of it that was designed by support has no other potential function i mean it i designed whether it's with a shelf with cups or whatever so i guess i am in my brain thinking about is the question that this boils down to what is the primary characteristic of the garment as a whole as opposed to what are individual elements of the garment designed for is that the right way that you think you ought to be thinking about this yes you are believe that is exactly the correct way to be looking at this because if not be said to be inconsistent with just a bra yes your honor and or is it the other way to look at it as well i mean this gorman this garment is a top there is no question at the top it is sold as a top and to the extent would those categories other garments is there anything about the presence of this insert shelf ground that would remove it from sixty one fourteen because we're looking at these two heading to gether city to twelve problem i'm having the one problem i'm having and i understand your argument and i think that is a logical way for me to frame in my mind how to think about the primary functionality or characteristic essential characteristics versus additional features i get that the problem is these fact findings are a little bit confusing to me because he says support he he he concludes that support is essential characteristic of the garment but then when you read the rest of the opinion it's like he said he i don't know i don't find him saying coverage is the essential subpart i don't mind him saying there is a difference think like an  evening gown everyone in this room is going to agree it's much more a dress than it is a breezy or the problem is you all are disagreeing with or the top is much more a top than it is a brazil or much more per year than it is a top and the problem i have is his fact finding don't track either of you particularly well to be honest with you because he doesn't say no it's more a top than it is a support function so the problem having is how do i because i think he may well have judge set although i don't think it's crystal clear has sort of decided it was a dual function item and each purpose was of equal weight in terms of there wasn't a primacy or essentially ality it was both these both are essential to this device is the garment i don't know so how do i reconcile all of that right it is the it is unclear in the opinion whether or not the court did do exactly as your honor has indicated you know balancing and the court did conclude that the we need to i don't know that we need to find and you know the essential characteristic of the time because if we look at having sixty to twelve we see that the articles of heading sixty to twelve are articles that in of themselves in their entirety provide support what we have here is a garment that the only portion providing support is the insert the outer portion of the garment and these garments cannot go to one garment it's a unified  to the bus yes but the entire government provided support to the upper body if there's no testimony to this to the upper or to the garment providing support to the upper body only testimony about support and support of shaping and molding and supporting the breasts and that the garment the the body shape or form which is the learned mormon there was testimony from their witness that the way that that foreman is designed it causes  the inner tube of the garment i believe i believe your honour's may have seen the sample so i'm i know want to record it sounds pretty in descriptive but if you've seen the article and you've seen the pictures there is a insert inside it is yonder portion that does not provide any support so if we look at this garment in toto as a whole which we are charged to do we we classify anything that's important to the united states is to look at is a whole in fact the court found the whose outer chemical shell does not provide any body support but conceals the shelf bra correct and so there's no testimony that the garment itself other than the shell from insert is providing support really just to help me did he find did he say anywhere what was an essential characteristic we know what he said what wasn't the essential characteristic don't believe he did your idea say anywhere support coverage in modesty are the essential characteristics of this good i don't believe articulated it that way i believe you articulated that those are factors of the good but these are you know aspects or right but he's the only thing i've ever call is that he said support was not the essential so we know at a minimum but he didn't say so just to be clear he didn't say support was an essential characteristic he said it was not the essential a did he say  guess i was confused because there was some communication back and forth i was wondering if i missed something he says support is not the essential characteristic did he somewhere care because to train i asked you what he said it's an essential characteristic and i thought you said yes so i was suddenly concerned that i had missed some section of the opinion where in he had actually made a fact finding that support is an essential characteristic of the import of garment it may have been that i misunderstood or misheard either his question or your answer but i was sitting here for a few minutes reeling thinking did he say support modesty and coverage are all essential characteristics as opposed to just say these are factors and i wanted you to be clear on the record so that i didn't misunderstand what i'm as well as a preponderance of the evidence introduce that right across the court finds that are brought topless designed to provide support to the bust of the where if if a top is and is designed for a specific purpose how can it be said that that's not a an essential element of that of the article it's not that it was designed to be a specific purpose it was it was found that it was designed to provide to support so not a specific purpose not of primary purpose but that it does provide testimony if we go back through the factual findings this is a summary if we go back to the factual findings the point that the court finds is that only it is only the insert that actually provide let me ask a different way did did the government agree garment sixty to twelve is in a just in generic analysis sixty two twelve reveals that each article in that list is one to provide support it is the entire article doing the provision of support not a portion of the article so that when you look at that list of articles that is there what is the unifying factor is that the entire article provide support here you have a top who has a portion a feature that provide support but the the outer shell does not provide support so the question becomes now if we're going to classify this way everyone agrees at the time it's sold as a top no question it's a tough so then the question becomes does the presence of a supportive feature which is the shelf from component of this article does that present remove it from the court's classification sixty one fourteen which is other garments included in other garment in sixty one fourteen so does the presence of that support features remove it no indeed it does not because the plain definition of a camisole top includes that it will include the buildings raw so clearly if it includes a built in bra it has support so your honor i want to point briefly to two findings of fact by the court the body shape or cannot be separated into two independently functioning garments because the straps would have to use for both garments and point number six about the shapers cup under essentially the central characteristic of this garment is support and so we have two competing provisions other garments knitted or crocheted and then a very specific support provision in which order to be classified on that provision you have to have a functionality or use that dissimilar to a breezy or and does not perform any bodily support function well that would be contrary to that effect on me i'm reading from his opinion yes and so that would be inconsistent with the testimony of the compression along the torso to giving  swimming appearance to the body so that compression in the body shape or garment that you had also testimony that the other way so i mean i'm not going to overturn effects on sure not absolutely so how do i reconcile this fact heidi which i'm not going to overturn with your argument about why the overall garment ought to be classified as a supporting arm because it is similar because we did find that support functionality because similar articles in chapter six to twelve has to be something dissimilar but maintaining the use of the function that runs throughout the headache and that's what to do some generics mean for the very bottom we're not asking to be a browser we're asking to be similar to the articles in there and there's no  if he had made the fact finding that the essential characteristic of this garment is coverage that it has it's vishal functionality of offering a shelf bra like to look at evening out example i gave you we decide these things are equal that we have to put it into the resistor category that would be a finding of fact your honor and we're not asking the court to make a finding of fact so that the only finding effect we have from him is support is not the essential characteristic if you're out anything else in terms of finding a fact other than that so if i conclude the essential characteristic of everything in that heading is support and then look here in the essential characteristic of this device is not about the evening gown where i thought that we were on all fours which was that an evening gown that happens to have a function that serves a brazil or doesn't suddenly put it into the bridge category because if primary function is otherwise it's an a nominee druss no doubt that it would be classified as a nominee in chapter sixty one admiral be in the other needed articles before it would be in the browser category but i'd have to see example you're on but honestly address is classified provide support when he didn't when he found the opposite up not to be frustrating your your honor i was just going back to judgement of finding regarding the summary where he doesn't summarize in that fashion so inc