1 Effective March 1, 2003, the United States Customs Service was renamed the Bureau of

Customs and Border Protection of the United States Department of Homeland Security. See Reorganization Plan Modification for the D epartme

nt of Home land Secu

rity , H.R. Doc. 108-32 at 4 (2003). Slip Op. 04-104

UNITED STATES COURT OF I NTERNATIONAL

TRADE

_____________________________________ : 

### M ATTEL 

### , I NC 

### . and 

### F ISHER 

### P RICE 

### , I NC 

### . : Plaintiffs , : v. Court No. 98-12-03231

: 

### U NITED 

### S TATES , :

Defenda nt. _____________________________________: [Plaintiffs ’ motion for summary judgme nt granted; Defendant ’s cross-motion for summary jud gment denied, and action dismissed.] Decided: August 19, 2004 Stein Shostak Sho stak & O’ Hara, P. C. ( Marjorie M. Shostak and He ath er C . Li tman ) , for Plaintiff s. Peter D. Keisler , Assistan

t Attorne y G eneral ; John J. Mahon , Acti ng Attorney in Charge, International

Trade Field Office, Commercial Litigation Branc h, Civil Division, U.S. Department of Justice ( Mikki Graves Walser ); Sheryl A. Fr ench , Office

of th e Assistant Chief Coun sel, Inte rnationa l Trade L itigatio n, U.S. Cust

oms Servic e, Of Coun sel; for D efenda nt United St

ates.

OPINION RIDGWAY, Judge: In this actio n, plaintif

fs Mattel , Inc . and it s w ho ll y- owned division, Fisher-Price, Inc ., (collec tively

“Mattel” ) challe

nge the decision of the U. S. Customs Ser vice (“Customs”) 1 denyingCourt No. 98- 12-03231 Pag e 2

2 Two Customs rulings on Pop-Up W acka roos are included in the re cord. Cus toms Headquarters Decision on Further Review of Protes t (March 7, 1996) (“Customs Headquarters Decision Memo”) appears in the record as Plaintiffs’ Exhibit 11 and as Defendant’s Attachment A. The agency ’s ruling on

Mattel’s protest – HQ 958869 (May 13, 1998) ( “Customs’ Ruling Letter”) – appears in the record as Plaintiffs’ Exhibit 2 and as Defendant’s Exhibit A.

3 All refe rences are to th e 1994 ve

rsion of th e HTSUS. Mattel’s protests

concerning the tariff classification of certain children’s mer chandise imported by Mattel and marketed in this country as “Pop-Up Wackaroos.” 2 The Government maintains that Customs prope rl y cl as si fi ed th e “ Po p- Up Wa ck ar oo s” as to ys

– specifically, “ [o]ther toys . . . [i]ncorporating an electric motor,” under subheading 9503.80.20 of the Harmonized Tariff Schedule of the United States (“HTSUS”) (1994) , 3 assessing duties at the rate of 6.8 % ad valorem

. See generally Memoran dum in Suppo rt of Def

endant’ s Oppositio n to Plaintiff s’ Motion for Summary Judgment and in S uppor t of Defendant’s Cross-Motion for Summary Judgm ent (“Def

.’s Brie f”); De fendant ’s Reply to ‘Plainti ff’s Comb ined Oppo sition to Defe ndant’s Cross-Mot

ion for Sum

mary Judgment a

nd Reply to Defen

dant’s Op

position to Plaintiffs’ Motion for Summary Judgment’ (“De f.’s Reply Br ief”). Mattel contends that Pop-Up Wackaroo s are in stead pr operly classifi able as “ [g]ame machine[s],” under

subhead ing 9504 .90.40, a

nd thus ar e dutiabl e at the s ignific antly lower ra te of 3.9 %. See gen erally Memoran dum of Point s and Auth orities in Support of Plaintiffs’ Motion for Summary Judgment (“Pls.’ Brief”); Plaintiffs’ Combined Opposition to Defendant’s Cross-MotionCourt No. 98- 12-03231 Pag e 3

4 Heading9503 co vers, i n relevant part, “[o]ther toys; re duced-size (“scale”) models and similar recreational mod els, work in g or not; puzzles of all kinds; parts and accessories thereof.” Subheading 950 3.80.20 cov ers “[o]ther toys and models incorpora ting a motor and parts and accessories thereof; Toy

s (except models): Incorporating an electronic motor.” Heading 9504 covers, in relevant part, “articles for funfair, table or parlour game s, including pintable s, billiards , specia l tables f or casino game s and automatic bowling alley equipment.” Subheading 9504.90.40 covers “[o]ther: G ame mac hines, oth er than c oin–or tok en-oper ated; pa rts and accessories thereof.”

5 Except as otherwise expressly indica ted, the facts in this section are drawn larg ely from an examination of the sample merchandise. See Def.’s Exh. C (sample merchandise). for Summary

Judgme nt and R eply to Defe ndant’s Opposition to Plaintiffs’ Motion for Summary Judgment (“Pls.’ Reply Brie f”). 4 Cross-motions fo r summary judgme nt are pending. Jurisdiction lies under 28 U.S.C. § 1581(a) (1994). Customs’ classification decisions are subjec t to de novo review pursuant to 28 U.S.C. § 2640 (1994). For the reasons discussed below, “Pop-U p Wackaro os” are

properl y classifi ed as “[g ]ame mach ines” und er subhe ading 9 504.90.40 of the HT SUS. Mattel’s motion for

summary judgmen t is there fore g

ranted, and the G overnme nt’s cro ssmotion is denied.

I. Background The box in which it

is sold des cribes th e merch andise here at issue – “Po

p-Up Wac karoos”

– as “[a] fast-paced preschool game” designed for children “[a]ges 3-7.” See Def.’s. Exh. C (sample of merchandise at

issue). 5 In essence, it is a scale d-down, children’s version of “Whac-A-Mole,” a

ve ne ra bl e a nd be lo ve d g am e c om mo n i n a rc ad es an d c as in os th ro ug ho ut th e c ou nt ry.Court No. 98- 12-03231 Pag e 4

6 To start “Pop -Up Wa ckaroos,” a child pushes the large r ed button in the lower left hand corner of the base unit. A battery-pow ered motor then causes the six “critter heads” – one at a t ime – to rando mly p op out of, a nd quickly

disappea r back in to, their r especti ve holes. As parents are warned in the sheet of “Instructions” included with the mer chandise, “There is no ‘OFF’ switch on this product.” See Def.’s E xh. C (sample

merchandise). Compare Customs’ Ruling Letter (stating, incor rectly, that the r

ed button on the merc handise is both an “on” and an “off” switch).

7 As explained

in the Instructions packaged with the merchandise, “ [t]he Pop/Up Wackaroos game w ill automa

tically shut off a

fter ap proximatel

y on e minute. ‘Winning ’ the ga me wil l als o automatic ally

shut off the gam e. ” See Def.’s E xh. C (sample

mercha ndise). T

he sample merchandise provided as Defendant’s Exhibit C runs for approximately one minute and forty- five seconds before

automatic ally

shutting off

(unless a play er succ essfully

hits all six cr

itter hea ds, in which case it shuts off sooner). Pop-Up Wackaro os consist s of two pie ces – a sm all, somew hat irre gularl

y- shaped b ase unit made of hard p lastic, a

nd a two- headed , accor

dion-sty le mallet made of soft plastic. When the ba se unit is turned on, a timing

device i s activated, whooping, “wacky arcade sounds” begin to play , and six small comi cal “cr

itter hea ds” rand omly pop up – one

at a time –

out of six holes (or cavities ) in the base unit, bef ore quic kly

disappea ring ba ck into the ir respe ctive hol es. 6 For young c hildren playing

Pop-Up Wackaroos, the object is to “beat the clock” by using the mallet to quickly

strike ea ch critte r as it pok

es its he ad up (before it disappears back into its hole)

– and to successfully hit all six critters bef ore time runs out and the unit automatically shuts off (after roughly

one minute or so). 7 If a child succee ds in hitting a critter head while it is poking out of its hole, that critter makes

a warbl ing, ch irp-y sou nd, t hen do es not pop up again. Any remain ing cri tter hea ds ( i.e. , critter heads that have not been

success fully

struck wh

ile out of t

heir holes) continue to randomly pop upCourt No. 98- 12-03231 Pag e 5

8 A hit is succ essful on

ly if the critt er is stru ck while i

t is poking

out of its ho le; a

nd th e critters randomly

pop out of their holes. However, there is otherwise no particula r “order” in which the critters must be struck. Compare Customs’ Rul ing L etter (s tating – in error – that “[i]f a

child hits all the ‘h eads’ w ith the mal let in the correct order . . . the unit makes bells and buzzer soun

ds” (emphasis added)). – one at a time – and then disappear again, until “time is up” (or until all six heads have bee n successfully struc

k, whichever happens first). 8 Acco rding to the back of the prod uct b ox: Kids love keeping these cute critters fr om popping up. Turn it on, watch as they come out of the ir holes, then try to bop them

back into place. Pl ay ers win

when all the critters stay dow

n. See Def.’s Exh. C (sample merchandise). If a child hits all six critter heads within the allotted time ( i.e. , before the unit a utomatica lly shuts off), the child “wins,” and a distinctive, melod ic “ cavalry -charge”-ty pe fanfare play

s, heralding the child’s success. On the other hand, if time expires before the child succ eeds in striking all six “critter heads” while they

are poking out of their holes, the unit silently shuts off. See Def.’s Exh. C (sample merchandise).

II. Standard of Review Under USCIT Rule 56, su

mmary judgmen t is appro priate w here “t here is no genuine issue

as to any materia l fact an d . . . th e movi ng party is entitled to . . . judgment a s a matter of law.” USCIT R. 56(c). Customs classification decisions are reviewed through a two-step analysis – first, construing the relevant tariff headings, a que stion of law; and second, determining under which of t ho se headi ngs the merchandise at issue is pro pe rl y classified, a question of fact. Bausch & L omb, Inc.Court No. 98- 12-03231 Pag e 6

v. United States , 148 F.3d 1363, 1365 (Fed. Cir. 1998) ( citing Universal Elecs., Inc. v. U nited States , 112 F.3d 488, 491 (Fed. Cir. 1997)). Summary judgment is thus appropriate where, as here “there is no genuine dispute as to the underlying factua l is sue of what exactly the me rchandise is.” Id. at 1365. A factua l dispute is genuine only “if the

evi dence is such that the [the trier of fact] could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby , Inc. , 477 U.S. 242, 248 (1986). “[T]here is no issue for trial unless the

re is sufficient evidence favorin g the no nmoving p arty

. . . . If theevidenc e is mere ly colorable, or is not significantly proba tive, summary judgme

nt may be g

ranted.” Id. at 24 9-5 0 (emphas is added) ( citations omitted). Thus, at the summ a ry judgme nt stage, the question to be answered is “whether there is the need for a trial – whe ther, in other words, there are an y g enuine factual issues that properly ca n be resolved only by

a finder of fact because they may rea sonably be resolved in favor of either party .” Id. at 250. On review, Customs’ classification rulings are acc orded a measure of deference pr

oportional to their power

to persuade, in accordance with the principles set forth in Skidmore v. Swift & Co. , 323 U.S. 134 (1944). See United States v. Mead Corp. , 533 U.S. 21 8, 234-35 (2001); Mead Corp. v. United States , 283 F.3d 1342, 1346 (Fed. Cir. 2002).

III. Analysis The classification of all merchandise is governe d by the Gene ral Rules of Interpreta

tion (“GRIs”), which provide a framework for classification under the HTSUS, and are to be applied i n sequential order. See , e.g. , North Am. Processing Co. v. United States , 236 F.3d 695, 698 (Fed. Cir. 2001); Orlando Food Corp. v. United States , 140 F.3d 1437, 1439 (Fed. Cir. 1998).Court No. 98- 12-03231 Pag e 7

The GRIs relevant

to this action a re GRI s 1 and 3. M ost good s are cl assified pursuant to GRI 1, which provides that “classification shall be determined acc ording to the terms of the headi ngs and any rele vant section or chapter no tes and, provi ded such section o r notes do

not other

wise require, according to [GRIs 2 throug h 6].” GRI 2(a) and 2 (b) – which have no bearing her e – gener ally deal, respectively , with the classification of articles that are “incomplete,” “unfinished,” “unassembled,” or “disa ssembled ,” and wi th the cla ssificat

ion of “mixtu

res or c ombinatio ns” of materia ls or substances). GRI 3, in turn, governs the tariff treatment of goods that “are, prima faci e , classifiable under two or more headings.” Both Mattel and the Government contend that Pop-Up Wackaro os is classifiable pursuant to GRI 1 – albeit w

ith very differe nt results . Mattel a sserts tha t GRI 1 leads to c lassific ation as a “game machine ” under h eading

9504, whil e the Gov ernment maintains

that it leads to classification

as a “ to y” under heading 9503. See , e.g. , Pls.’ Brief at 6; Def.’s Brief at 22. Mattel arg ues, in the alternative, that – eve

n if Pop-U

p Wackar oos is prima facie class ifiab le und er bot h head ings 9503 and 9504 – GRI

3 compels

classifi cation a s a

“game machine.” See , e.g. , Pls.’ Brief at 4, 11-13; Pls.’ Reply Brief

at 10-11. The parties’ arguments are c onsidered in turn below.

A. GRI 1: Th e Terms of The Headi ngs Classification und er G RI 1 begins with “the t erms o f the h eadin gs and any re levant section or chapter notes.” GRI

1.Court No. 98- 12-03231 Pag e 8

9 Int er es ti ng ly, the Government at one point appears to retreat from its c laims as to two of the three criteria. In its Reply Brief, the Government asserts that Pop-Up Wackar oos is not clas sifiable as a “g ame” be cause it

“does not

involve a phy sical or m ental co mpetition” (criter ion (1) ) . But it makes no reference whatsoever to “skill, chance, or

endurance” or “a me thod or system of sco ring” (criteria (3) and (4) ). See Def.’s Reply B rief at 1. 1. Heading 9504: The Definition of “Game” The Government explains that, because the term as used in heading 9504 is not defined

in the HTSUS, Custo ms has establish ed crite ria for d etermini ng whet her an a rticle is classifi able as a “game,” “[b]ased upon the dictionary definition of the term . . . and the prior judicial construction of that term.” Def.’s Brief at 13. Acc ording to the Government, to secur e tariff treatme nt as a “game,” an article must involve: (1) a co mpeti tion or con test w ith t he obj ectiv e of wi nnin g; (2) play activity betwee n two or mor

e people or between one person and the ga me itself; (3) skill, chance, or endurance, or a combination of these elements; and (4) a m ethod or system of sco ring. Def.’s Brief

at 13; Def.’s Reply B rief at 5, 10. See also Customs Headquarters Decision Memo at 2. The Government

maintains thatCustoms correctly found that Pop-Up Wacka roos “does not satisfy criteria (1), (3), and (4)” – that is, that the mer chandise does not involve “a competition or contest with the objective of winning”; that it does not involve “skill, chance, or endurance, or a combination of these elements”; and that it does not involve “a method or system of scoring.” 9 Def.’s Brief at 14. Thus, accor ding to the Government, Customs properly c oncluded that Pop-Up Wackaroos cannot be classified as a “g ame” under heading 9504.Court No. 98- 12-03231 Pag e 9

1 0 Both Mattel an

d the Gove

rnment a gree t hat Mego is the controlling author ity o n th e definition of “game.” See Pls.’ Brief at 6; Def.’s Brief at 11- 12. To the contrary , as discusse d more fu lly b elow, not

hing in the rele vant cas e law re quires a “game” to have “ a method o r sy stem of sc oring” (at leas t not in the s ense tha t Custo ms and t he Government

here use t hat conc ept). No r do dictionary definitio ns refle ct any

such req uiremen t. Moreover, such a requirement is belied by every day logic a nd common s ense, as

well as Cu stoms’ past practice. In short, ther

e is no basis for criterion (4) above – at l east not in the sense in which Customs applied it in this instance. In addition, contrary to the G overnment’s assertio ns, Pop-Up Wackaro os both

involves “a competition or contest with the objective of winning” (criterion (1)), and re quires “skill, chance, or endurance, or a c om bi na ti on of th es e e le me nt s” on th e p ar t o f p la ye rs (criterion (3)). The Government’s objections to classification under heading 9504 thus have no merit.

a. “ A Method or System of Scoring ” The Governm ent repr

esents that controlling judicial precedent on the definition of a “ga me” requires a system o f scori ng. 10 See Def.’s B rief at 6 (asser ting tha t M ego defined “games” as including “a method

or system of scoring ”), 13 (stating that, “according to the CCPA, an activ ity i s

a ‘game ’ if it re sults in a ‘ score’ ”), 15-1 6 (sugg esting t hat Montgomery Ward

requires a scoring system). In fact, the Gover nment simply misreads both Mego and Montgomery Ward (which Mego cites). See ge nerally Mego Corp. v. United States , 62 CCPA 14, 505 F.2d 1288 (1971) ( Mego ); Montgomery

Ward & Co. v. United States , 66 Cust. Ct. 233, 238 (1971) ( Montgomery Ward )

.Court No. 98- 12-03231 Pag e 10

While both Mego and Montgomery Ward stand for

th e prop osition that an element of “contes t” must be present, neither case expressly or implicitly requires a “ system of scoring ” as an essential element of a “game.” Rather, in both cases, the existence of a sy stem of scoring was treated

as evidence

that the play ac tivity at issue constituted a “contest.” Mego involved the classification of a miniature pinball machine under the Tariff Schedule of the United States (“TSUS”), the predecessor to the HTSUS. There, as here, the key question was whether the merchandise at issue was a “ga me.” The Mego court endorsed the parties’ reliance on the common meaning of

“game,” as reflected in dictionary definitions of the term. Thus, Mego held that a game “must be c ompetitive

or involve

a contes t, and must

possess a n elemen t of skill, chance,

or endurance.” Mego , 62 CCPA at 18. Conspicuously absent from that definition is any reference to a “system of sc oring.” Inde ed, the Mego court referred to “the objective . . . [of] get[tin

g] the ba lls into the high est numbe

red slots to make th e highest s core ” – its sol e reference to a “sy stem of scori ng” – only to establish the presenc e of “the element of contest,” which is required of a “game. ” Mego , 62 CCPA at 18 (emphasis added). As support for its holding that the objective of reaching a higher score satisfies the element of “contest” required for classification as a “game,” the Mego court quoted Montgomery Ward . Like Mego and the case here at bar, Montgomery Ward concer ned whet her cer tain merchandise – there, th e “Mechanica l Mother Hen Target Game” – w as a “game” (or a “ game machine”) for tar iff purposes . Si gn if ic an tl y, the legal issue presented in Montgomery Ward (and, in particular, the subject of the excerpt quoted in Mego ) was not whether “scoring” is a required eleme nt of a “g ame,” bu

t –Court No. 98- 12-03231 Pag e 11

rather – whether the mandatory ele ment of a “contest” necessarily required competition between at least two people . 66 Cust. Ct. at 239. Montgomery Ward held that the “contest” requi re d for classification

as a game “may

be between two or more persons, or between one person and the game itself,” citi ng pin ball m achin es, sl ot mac hines , and d arts a s “ga me s” that may be play ed by one person alone. Id

. The court reasoned: The point is tha

t these a ctivities [ i.e. , pinball, slot machines, and dart s ] are games since they result in a ‘ score ’ measuring one’s skill or luck or combination thereof agains t a give

n set of r ules. Id. (emphasis added). The court’s point in Mongtomery Ward was that – because they

result in a “score” – pinball, slot machines, and darts satisfy the required element of a “contest,” eve n when they do not involve two or more c ompetitor s. The co urt notab ly d

id not hold t

hat, in addition to involving a “contest,” a game must also involve “scoring.” In sum, rea

d caref ully and in con

text, it is clear that – in both Montgomery Ward and Mego

– the cour t viewed “scoring” not as an independent element required for c lassification as a “game,” but, rather, as an indicator (or as evidence) of the existence of the required element of a “contest.” The controlling case law simply do es not requ ire that a

game, f or tarif f classif ication p urposes, involve “scoring.” Nor do dictionaries define “game” to re quire “a method or sy stem of scoring.” Certainly the dictionary

de finitions of the term in Mego and Montgomery Ward did not mention scoring. See Mego , 62 CCPA at 18 (noting that the parties there “cite various dictionary de finitions which indicate that a ‘game’ must be competitive or involve a contest, and must possess an element of skill,Court No. 98- 12-03231 Pag e 12

11 The Governm ent’s use

of ellipse s is mislea

ding. As quoted in the Government’s briefs, it appears that the p hrase “ The numbe r of point s necess ary

to be score d in order

to win . . .” is part and parcel of the definition numbered “3 a (1)”: “a physical or mental c ompetition conducted according to rules in whichthe participants play in dire ct opposition to each other, each side striving to win and to keep the other side from doing so.” But, in truth, the re ference to “scored” is ac t ually part of another distinct, s eparat

e ly n umb ered de finition, c oncerni ng a dif ferent , and arg

uably irrelev ant, meaning of “game.”

12 It is wo rt h n ot in g t ha t t he co nc ep t o f “ sc or in g” do es no t n ec es sa ri ly i nh er en tl y c onn ote a graduated, multi-level or numerical measuring sy stem (as Customs and the Government appare ntly contend). Thus, it is not apparent why a bina ry “w in/lose” system cannot constitute a sy stem of chance, or endur

ance”) ; Montgomery

Ward , 66 Cust. Ct. at 236 (quoting at least seven definitions of “game” from three diff erent dictionaries). Moreover, none of th e dic ti on ar y d efinitions cited by the Gover nment in the case at bar identify “scoring” as an essential

element of a “game.”

Indeed, of the three

different dictionaries and the nine or mo re definit

ions of the te

rm quoted

in the Gov ernment ’s brie fs, only one of those definitions even mentions a variant of the word “score.” See Def.’s Brief at 11 ( quot ing Webster’s Third New International Dic tionary (Unabridged 196 1), Webst er’s New World Dictionary (Third Coll ege Edition 1988), and Merriam Webster’s Collegiate Dictionary (Tenth Edition 1996); Def.’s Reply Brief at 3 (reiterating the same quotes). And t hat r eferen ce actu ally does not u se “sco ring” in the sense in which the Government is using the term here; rather, it comes from a de finition of the word “game” meaning

– literally – “[t]hat which is gained a s the result a game.” 11 The definitions of “game” in Mego and Montgomery

Ward , as well

as various dictionaries

– none o f whic h requ ire a “s ystem of s corin g” – are also consistent with everyda

y logic a nd common

sense. Examples of

“games” lacking “sc oring” ( i.e. , a graduated sy stem of measuring performance ) abound. 12 The company

picnic favorite, “tug-of-war ,” in which two groups of people on either endCourt No. 98- 12-03231 Pag e 13

scori ng. Indeed, Montgomery W ard defined “score” simply

as the “measuring [of] one’s skill or luck or combination thereof against a g iven set of rules.” Montgomery Ward , 66 Cust. Ct. at 238. A “measuring” sy stem based on 0 and 1 is not qualitatively diffe rent from a measuring sy stem based on 0, 1, 2, and 3; it is merely more cr ude. It is, in any event, unclea

r precisely

what Customs means by a “sy stem of scoring.” While the agency

sometimes appears to require a scoring me tho d c apable of measuring gr adations of performance ( i.e. , beyond simply determining winning or losing) ( see , e.g. , Af

f. o f Customs National Import Specialist ¶ 36 (asserting that Pop-Up-Wackaroos lacks a “timing or scoring mechanism [that would permit players to] know

if they were improving”)), Customs has – in a number of instances

– classified as “games” article s that did not provide for a system of scoring bey ond a method of determining a winner and loser. See , e.g. , HQ 801795 (Dec. 21, 1991), HQ 037583 (Feb. 13, 1975) (electr ic racing car set s without la

p timers or

lap count ers cla ssified a s games ); H Q 038561 (Mar. 3, 1975) (mechanical karate ac ti on figures providing only for win/lose competition classified as games); HQ 959558 (Sept. 14, 1998) (box of chewing gum with plastic maze dispenser, and win/lo se objective, classified as a game).

13 Ob vi ou sl y, a graduated method of scoring may be impose d in any

“win/lose ” game

by, for example, playing f

or “two-out-of-three.” The point, however , is that gra duated scoring is not intr insic to the game itself. of a rope try

to pull each o t her across a dividing line, involves only a binary c onstruct – “winning and losing” – without any g raduated method of measuring the perf ormance of the winners and losers. 13 The perennial barroom classic, “arm wr estling,” similar ly

lacks any inher

ent method of distinguishing one winner or loser from another. Further, this observation is not limited to games involving phy sical co ntests. Th e elect ronic game “Sim on,” e mblem atic o f the l ate 19 70s, c onsi sted o f a roun d plas tic di sc wit h four , large different colored buttons. Players tried to memor ize and then repeat increasingly

long sequences of musical tones after they

were emitted from the disc and displaye d by the illumination of the differe nt colored buttons. Notably, Simon did not include any method of mea suring a play er’s performance

or “score.” Nevertheless, Cus toms clearly co nsidered it to be a “game” for ta riff purposes. In aCourt No. 98- 12-03231 Pag e 14

14 There are othe

r similar e xamples of p

rior Custo ms practic e that ca nnot be re concile d with the agen cy’s posi tion on “sc oring” here. In fa ct, on othe

r occas ions, Custom s has cla ssified it ems lacking graduated

systems of scoring

as “games” under heading 9504 – the very HT SUS provision here at issue. For example, “Wolverine Maze Candy” wa s a small box filled with pieces of chewing gum, with a plastic maze/dispensing portal on the top. In orde r to e xt ract a p iece of

gum, one

had to naviga te the gum through the maze to the opening. Classify ing the item as a game, Custom s des cribed it a s a “contest or competition against oneself with a win/loose [sic] objective.” HQ 959558 (Sept. 14, 1998). The chewing gum dispenser c learly did not have a ny system of measuring a player’ s performance (indeed, query whether one could even lose the “game”); y et Customs found that the chewi ng gum dispe nser satisfied the same four specific criter ia that the Government and Customs relied on here. See also n.12, supra (listing other such examples). Customs’ handling of “scoring” vis-a- vis classification as a “game” has been inconsistent

in other way s as well. For examp le, some Cu stoms rulin gs c oncern ing pote

ntial cla ssificat

ion as a “game” list scoring as an es sential criterion, while others do not. Compare HQ 076287 (July 31, 1985), HQ 05279 (Feb. 13, 1978), with HQ 0375853 (Feb. 13, 1975), HQ 038561 (Mar. 3, 1975), HQ 0330 67 (Aug. 18, 1976), HQ 800741(June 26, 1981), HQ 061105 (Aug. 10, 197 9), H Q 057781(Apr. 1, 1978), HQ 049067 (Apr. 21, 1977), HQ 087976 (Dec . 13, 1990)

. And even whe

re Customs ’ analy

sis points to

scoring , sometime s it is trea te d not as an independent

criterion for

classification as a “game,” but rather as evidence of the existence (or la ck thereof) of a “contest” or “competition.” See , e.g. , HQ 033067 (Aug. 18, 1976) (met hod of computing scores cited among “factors . . . suf ficient . . . to conclude [that the article] was designed and constructed to be use d in co mpeti tion ”); HQ 0 61015 (Aug. 10, 1979) (finding that the object of the gam e in

question i s to score the highest number of points and therefore “is designed for use as a competiti on”); HQ

052868 (A

ug. 19, 1 977) (sy

stem of sc oring li sted amon g fact ors s upportin g conclusion that “competitiveness . . . is clearly lacking”). ruling made under the TSUS, Customs classified a part used in the manufacture of “Pocket Simon” (a miniaturized version of Simon) under the tariff provision for “game machines a nd parts thereof.” See HQ 800291 (Apr. 7, 1981). Thus, e ven Customs’ own prior practice demonstrates that tariff classification

as a ga me does no t tu rn on the pre sence of a “sy stem of scoring” (at least not in the sense in which the Government uses that term here). 14Court No. 98- 12-03231 Pag e 15

In fact, Customs has explicitly stated that, for som e merchandi se, a sy stem of sc oring is among a list of ele ments or f

eature s not all of

which need be present in order to satisfy the crite ria for classifi cation a s a

“game.” See , e.g. , HQ 087976 (Dec. 13, 1990) (listing lap counters, lap timers, and finish lines among elements providing evidence of c ompetition in race car sets, but emphasizing that not all elements are required). In sum, Customs has identified no basis in law or log

ic for requiring “a method or sy stem of scori ng” as an integral element for tariff classification as a “game.” Ac cordingly , its determination that Pop-Up Wackaroos lacks such a sy stem gives no pause.

b. “ A Competition or Contest with the Objective of Winning ” The Go ve rn me nt fu rt he r c on te nd s t ha t C us to ms pr op er ly determined that Pop-Up Wacka roos does not involve “a competition or contest with the objectiv e of winn ing” – c riterion (1) of Cus toms’ standard formulation for a “game.” See generally Def.’s Brief at 16-17; Def.’s Reply Brief at 11-12. However, an examination of the sample merchandise refutes Customs’ determination. See Def.’s Exh. C (sample merchandise). Pop-Up Wackaroos plainly constitutes “a competition or contest” between the child playing with the merchandise and the item itself. The objective of play is for the c hild to “beat” the mercha ndise b y su

ccessf ully striking all six critt

er head s at the appropriate time ( i.e. , as each individual head randomly pops up, but before it quickly disappe ars back into its hole) and within the allotted time ( i.e. , before

the ti ming device automatically shuts off the mer chandise, silencing the background

ar ca de so un ds th at al wa ys accompany play, and for

cing the child to cease play without enjoying the distinctive, melodic fanfare that heralds a “win” ). In s hort, Pop- Up WackaroosCourt No. 98- 12-03231 Pag e 16

15 The Government asserts that “a child between the ages 3- 7 is not capable of measuring time to ‘play ag ainst’ the machine.” See Defendant’s Response to Plaintiffs’ Statement of Mater ial Fac ts ¶ 8. However, the Government fails to back up that statement with any af fidavit testimony or other evidence to substan

tiate its c laim. Such bald allegations do not suffice to create a g enuine issue of material fact on

a motion for summary judg ment. See , e.g. , Sweats Fashions Inc. v. Pannill Knitting Co. , 833 F.2d 1560, 1562 (Fed. Cir. 1987) (in opposing a motion fo r summary judgment, a nonmovant may not rest upon mere

denials, “but must p roffer counter ing evid ence suf ficient t o creat e a genuine factual dispute.”)

16 Again, as noted above, unsupported allegations ge nerally do not suffic e to create a genuine issue of material fact on a motion for summary judgme nt. See , e.g. , Sweats Fashions Inc. , 833 F.2d at 1562 (in opposing summary judg ment, a non-movant may

not rest u pon mere denials, “but must proffer countering evidenc e sufficient to create a ge nuine factual dispute.”) effec tively

pits the ch

ild who is pl ayi ng with the merchandise in a “race against time.” 15 See generall y Pls.’ Brief at 9; Pls.’ Reply B rief at 8-9. Th e Gov ernment attempts to dismiss the timing device in Pop-Up Wackaroos as a mere “battery- saving feature.” Def.’s Brief at 17. But that argument is unavailing. As an initial matter, the Government proffers no e vidence (af fidavit te stimony

or other wise) in s upport of its claim, which appear s only

in its legal br iefs. 16 In contrast, the uncontested testimony of a Fisher-Price game designer confirms that the “timing element” of Pop-Up Wackaroos creates “a challenge by the machine against the play

er.” Pls.’ Exh. 5 (“Aff. of Fisher-Price Designer”) ¶ 12 (emphasis adde d). More fundamentally, it completely strains creduli

ty to claim tha t a timing de

vice tha t shuts off a produc t after only

one minut

e is simply an energ

y-saving feature – particularly

where, as here, the timing device shuts off the produ ct after just a minute or so without regard to whether or not the product is still in ac tive use . The timing element here thus is no mere “ba ttery-sav ing device.”Court No. 98- 12-03231 Pag e 17

17 It is also tel ling tha

t the timing

element i s emphasi zed in the r eta il pac kaging of Pop-Up Wackaro os. Specific ally , five of the six sides

of the box in

which the

mercha ndise is so ld tout it

as “A fast-paced

preschool game!” See Def. Exh. C (sample m erchan

dise) (e mphasis added). While it is true t hat the mann er in whic h an arti cle is mer

chandise d is not sole ly d etermina tive of its classification, it is also true that the importer’s consistent description of

the merchandise as a “game ” is a relevant factor. See , e.g. , R. Dakin & Co. v. United States , 14 CIT 797, 800-01 (1990) (citing cases). Rather, it serves

to inject t he eleme nt of “co mpetition o r contes t” into Pop- Up Wacka roos. 17 Indeed,

even the Government’s expert – a National Impor t Special ist – implici

tly r ecogn izes that th e time pressure inherent in Pop-Up Wac karoos eff ectively “c

hallenges” play

ers, attesting that a play

er conceiv ably

mi gh t “ ge t g oo d a t [ pl ayi ng ], an d a lw ays bea t the one-minute.” Def.’s Exh. B (“Aff. of Customs National Import Specialist”) ¶ 22.) Just as a n examination of the sample merchandise at issue establishes that Pop-Up Wackaroos involves the requisite element of “competition or contest,” so too such an examination establishes the presence of “the objective of winning” that

is mandatory for ta

riff classification as

a “game .” As expla

ined abov e, the obj ective o f play ing with Pop-Up Wackaroos is to “beat” the product by strik ing a ll six critte r heads at the appropriate time ( i.e. , as each individual head randomly pops up, but before it quickly disappe ars back into its hole) and within the allotted time ( i.e. , before the timing device automatically shuts off the merchandise, silencin g the background “wacky arcade sound s” that always ac company play , and forcing the child to cease play without enjoying the distinctive, melodic fanfare that play s to trum pet success). Thus, a player “wins” at Pop-Up Wackaroos by succ essfully striking (1) all six critter

heads, (2) at the appropriate time, and (3) within the allotted time.Court No. 98- 12-03231 Pag e 18

18 The objective of “winning” is reinforced by the retail packaging

of Pop-Up Wackaroos, as well as the Instructions included with the mercha ndise. For example, the back of the box in which the mercha

ndise is so ld states: “Play ers win when all the critters stay down. ” See Def.’s E xh. C The Government inexplicably asser t s that “[t]here i s no indica tion of win

ning or l osing in playing with Pop-Up Wackaroos; there is no indication that the Pop-Up Wackaroos has won and the child has lost or vice versa.” Def.’s Br ief at 16-17. See also Def.’s R eply Brie f at 8 (“Pop-Up Wackaroos has no method of determining whether the child has won or, conversely , that the machine has won”). The Government further states that “[a] child merely continues pla ying until bells and bu zz er s s ou nd .” De f. ’s Re pl y Br ie f a t 8 . T he fa ct s a re qu it e t o t he co nt ra ry. If a pla yer “w ins” by succe ssfully striking all six critter heads at the a ppropriate time a

n d within the allotted time, that

“win” is announced by

a distinctive, melodic fanfare. Similarly , if PopUp Wackaroos “wins” ( i.e. , if a pla ye r “loses ” by

failing to strike a

ll six crit te r heads at the appropr iate time and before the allotted time expires), the distinctive fanfare does not pl ay. Instead, the automati c timing device simply shuts off the mer chandise, silencing the backgr ound arcade sounds that always ac company play, and forcing the child to cease play without en

joy ing the m elodic fa nf ar e a ss oc ia te d w it h v ic to ry. In short, co ntrary

to the Gov ernment ’s claims , after a maximum of

approxima

tely one minute of play with Pop-Up Wackaroos, a “winner” is declared – and either the distinctive, triumphant fanfare play s, or it does not. If the fanfar e of victory is hea

rd, the player

has won; if it is not heard, the play er has lo st. In a ny e vent, it is difficult to imagine – in the Government’s phraseology – a simpler or clearer “indication that the Pop-Up Wackaroos has won and the child has lost or vice versa.” 18 Moreove

r, there is no truth

whatsoever

to the Gov ernment ’s claim t hat “[a] ch

ild merel yCourt No. 98- 12-03231 Pag e 19

(sample mercha ndise) ( emphasis

added). Similarly, the I

nstructions state: “Pl ay ers win when all the critters have been pounded to stay down” and “‘ Winning ’ the game will . . . automatically shut off the game.” See Def.’s Exh. C (sample merchandise) (emphasis added). Although an importer’s own representations as to it s merch andise are not determinative, they are a factor to be considered f or classification

purposes. See , e .g. , R. Dakin & Co. v. United States , 14 CIT 797, 800-01 (1990) (citing cases).

19 The Government further asserts that the sound s of the dis tinctive, melodic fanfare of victory “at most, rep resent a

reward ” for pou nding do wn all of t

he head s wit

hi n the allotted time. Def.’s Brief at 16. Particularly in this context, however, it is difficult to discern how a “ r eward”

is inconsistent with the notion of “winning” a game. I ndeed, in clas sifying the “Wolv erin e Maze continues play

ing until bells and buzzers sou

nd.” Def .’s Reply Brief at 8. The “bells a nd buzzers” to which the Governm ent ref ers are actually instead the distinctive, melodic fanfare of victory ; and it sounds only if the ch

ild “wins” as descr ibed abov e. Other

wise, Pop- Up Wacka

roos auto maticall

y shuts itself off

after a pproximate ly

one minute . Contrar

y to the Gove rnment’s assertio ns, it simply is not possibl e for a ch

ild to continue playing

indefinitely “until bells and buzzers sound.” The very design of the product precludes it. Also wide of the mark is the G overnment’s claim that the distinctive fanfare of victory indicates no thing more tha n the fact “that no more heads will pop-up to be hit, i.e. , the task (pounding down all heads) is complete, and the play activity has ended.” See Def.’s Brief at 16. Critter heads stop popping up and the play activity end s a fter a maximum of approximately one minute in any event, whe

ther a playe

r “wins” or not. But

the victorious fanfare is heard only if the critter heads stop popping up because a play er has “won.” The fanf

are thus signifies more than simply the fact that no more heads will pop up; they a lso signify the reason that no mor e heads w ill pop up – i.e. , it signifies that the player ha s “won” by suc cessfully striking a ll six critter heads at the appropriate time, and before the allotted time expired. 19Court No. 98- 12-03231 Pag e 20

Ca nd y” game, i

t was pre cisely

a rewa rd (th ere, chewing

gum) fo r succe ssfully

completin

g a task (there, naviga

ting a ma ze) that Cu stoms cons idered s ufficie nt to satisf

y “ game” criteri o n (2) – “a competition or contest with the objective of winning.” See n.14, supra . In short, the

Governm ent’s ar

guments on this point fail to carry the da y. Pop-Up Wackaroos plainly involves “a competition or contest with the objective of winning,” and thus satisfies cr iterion (1) for tariff classification as a “g ame.”

c. “ Skill, Chance, or Endurance ” As with criteria (1) and (4), discussed above, the Government also see ks to defe nd Customs’ determination

that Pop-Up Wackaroos does not satisfy c riterion (3) – i.e. , t hat it d oes not involve “skill, chance, or endurance, or a combination of these elements .” But, a

part fro m a handf

ul of bald assertions that it is not met, the Government’s papers have little to say about the criterion. See Def.’s Brief at 13 (asserting that “Pop-Up Wackaroos . . . does not . . . measur[e] one’s skill or luck o r combination thereof

”), 14 (a lleging that “Pop- Up Wacka

roos does not . . . measur[e] one’s skill or luck, or skill and luck”). It is, in any

event, be yon d cavil th at skill (a

nd/or luc k) is involv ed in Pop-U p Wackar oos. Alth ough the Government contends that there is no requirement “that the play er must hit

all of the [pop-up critter] heads within any spec ific time frame” and that “there is no rea l method of measuring one’s skill or luck” in playing w ith Pop -Up Wackaro os ( see Def.’s R eply Brief a t 7), those statemen ts simply cannot be

squared with the f

acts. As discussed elsewhere, an examination of the sample merchandise reveals that, to “win” at Pop-Up Wackaroos (and thus to trigger the play ing of the distinctive, melodic fanfare of victory ) ,Court No. 98- 12-03231 Pag e 21

20 The Government’s papers include other similar concessions as we ll. For instance, the Government

seeks (a lbeit in a slightly differ

ent context) to analogize Pop-Up Wackaroos to another Fisher-Price product, the “Tap ’n Turn Bench” – which the Gove rnment c haract

erizes as a “clas sic work bench pegs and hammer toy .” See Def.’s Brief at 27. But the Government’sattem pted a nalogy fails for a variety

of reasons, some of which are releva nt here. Thus – for pur

poses of this disc

ussion of “ Skill , Chance , or Endur ance” – it is suffic iently telling that the Government concedes that the element of motion inherent in Pop -Up Wackaroos (with the critter hea ds popping quickly up and dow n) means that Wackaroos involves “a more difficul t challenge or

skill ” than the classic work bench (where the pe gs to be struck are stationary ). See Def.’s Brief at 27 (emphasis added) . But, obviously, that “cha llenge or skill” is even greate r when (as in Pop-Up Wackaroos) it is combined with the element of time pres sure – an element that the Government consistently minimizes or ignore s. See Def.’s Brief at 27 (discussing the “ch allen ge or skill” inherent in the element of motion, with no reference to the element of time pressure). a child must s trike all

six critter heads at the appr

opriate time ( i.e. , as each

individua l head ra ndomly pops up, but be fore it qu

ickly disappea rs back i nto its hole) and before

the allotte

d time ex pires ( i.e. , before the timing device a utomatica lly shuts off the merchandise, after roug hly one minute of play

). See Def.’s Exh. C (sample merchandise). Thus, contrary to the Government’s claims, “winning” at Pop-Up Wackaroos is expressly defined in ter ms of succes sfull y striking all six heads within a “specif ic time fra

me.” Simila

rly , a play er’s “s kill or luc k” is mea sured in terms of time – whether the player suc cessfully strikes all six critter heads at the appropriate time and within the allotted time expires

. Indeed, in specul ating th at a child conceivably

“might get good at [Pop-Up Wackaroos], and al wa ys beat the one- minute,” the Gove

rnment’s own exper

t – the Nat

ional I mport Spec ialist – implicitly admits that the timing element of Pop-Up Wackaroos increases the chal lenge i

nherent in try ing to str ike critt er head s in

motion, necessarily re quiring a certain degre e of skill on the part of

a player. See Aff. of Customs National Import Specialist ¶ 22 (emphasis adde d). 20 The point hereCourt No. 98- 12-03231 Pag e 22

is that the ti

me press ure ele ment repres ents a

challenge, compounding the cha llenge of striking objects in motion – b oth of whic h must, in tandem , be over come by a play er’s skill at quickly and

accura tely hitting th e critte

r heads w ith the mal let. Here, again, Customs simpl y g ot it wrong. Pop-Up Wackaroos plainly involves skill (and/or luck), and thus satisfies criterion (3) for tariff cla ssification as a “game.”

d. “ Rules Either Expressed or Self-Evident ” Over and above the standard four-criteria formula articulated by Customs and the Government

and discu ss ed a bove – i.e. , an article involving (1) a competition or contest with the objective of winning, (2) play activity betwee

n two or more people or between one person a nd the game itself, (3) skill, chance, or endurance, or a combination of these elements, and (4) a method or system of scoring – the Gove

rnment he re hints a t various points in its pape

rs that a “ game”

also must be “played a

ccording to rules either expressed or self-evident.” See , e.g. , Def.’s Brief at 6; Def.’s Reply Brief at 1. See also Customs Headquarters Decision Memo at 2. However, the Gove rnment tends to discuss “rules” only in the c ontext of one or another of its four specific criteria. See , e.g. , Def.’s Brief at 13 (referring to “a given set of rules” as a mea ns of determining a “s core” ( i.e. , criterion 4) that measures a play

er’s “skill or l uck or

combination thereof” ( i.e. , criterion 3)), 14 (referring to “a given set of

rules” against which “one’s skill or luck” is measured using a “scoring system”). It is thus entirely unclear

what role, if any, Customs and the Gove rnment believe “rules” play in determining whether an article is a “ game” for tariff purposes. But, in any event, the matter is ofCourt No. 98- 12-03231 Pag e 23

little moment in this case. Although the Government asserts at one point that there is “no implied

or exp ress ed rule that [someone playing Pop-Up Wackaroos] must hit all of the heads within any specific time frame,” and that

“there is no real method of measuring one’s skill or luck ag ainst any given set of rules when

playing” ( see Def.’s Reply B rief at 7), those are overstatements, to say the least. Thus, while the Gove rnment clai ms that “Pop-Up Wackaroos has only one simple instruction [or “rule”], to hit the heads,” the Government also concedes – a s it must – that “rules” need not be in writing, and that they

may be ver

y “simple.” See Def.’s Brief at 16 & n.3. It is, moreover, clear

– as detailed in section II I.A.1.b, above – that, contrary to the Gove rnme nt’s assertion, each individual critter head not only must be hit , but must be

hit at the appropriate time ( i.e. , as it as it randomly pops up, a

nd befor e it disappears back into its hole) and before the allotted time expires

. Further, here – as with the miniature pinball machine in Mego – no instructions or rules for play are really necessary , because both the objective of play and the op er ation of th e merch andise are relatively

“obvious.” See Mego , 62 CCPA at 19. In any case, Pop-Up Wackaroos are, in f act, packaged with a sheet of simple written Instructions (or “ rules”) that state: “Turn

[the base unit] on, watch as [the cu te critte rs] come ou

t of their holes, the n try to pop them

back into place. Pl ay ers win when all the critters have been pounded to stay down.” See Def.’s Exh. C (sample merchandise). The bo tt om li ne is th at , b ec au se Po p- Up Wa ck ar oo s i s r el at iv el y simple, it has rel atively simple rules. But rules, indeed, it has – both “expressed” and “self-e vident.” Thus, to the extent that tariff classification as a “game” requires such rules, Pop-Up Wackaroos satisfies that req uiremen t.Court No. 98- 12-03231 Pag e 24

Indeed, as detailed

above, Pop-Up Wackaroos satisfies all of the valid established criteria for tariff class ification as a “game.” I t involves (1) “a competition or contest with the objective of winning”; (2) “play ac

tivity” between a

child and“the game itself”; and (3) skill (and/or luck). PopUp Wacka

roos is thu s prima facie classifiable as a “game” unde r heading 9504.

2. He ad in g 9 50 3: Th e D ef in it io n o f “ To y” The determination that

Pop-Up Wackaroos are prima facie classifiable under heading 9504 does not conclude the a

nalysis. I f merch andise is prima facie classifiable under two or more heading s, GRI 3 applies. Here, the G overnment argues for cef ully for Customs’ classification of Pop-Up Wackaroos as “toys,” under heading 9503. See , e.g. , Def.’s Brief at 22-28. I f, indeed, the mercha ndise is prima facie classifiable under both headings 9503 and 9504, then resort must be had to GRI 3. Heading 9503 of the HTSUS covers “[o]ther toy s; re duce d-siz e (‘scale’) models and similar recreational models, wo rking or not; puzzles of

al l k in ds ; a nd ac ce ss or ie s t he re of .” De fi ni ng “t oy” as “an a rticle principally used for [] amusement, diversion, or play,” the G overnment reasons that heading 9503 is a “principal use” provision. See Def.’s Brief at 22 (emphasis added). As such, the Government

asserts that heading 9503 is covered by Additional U.S. Rule of Interpretation (“ARI”) 1(a). Def.’s Brief at 22-23. ARI 1(a) ad dresse s the classification of merchandise under a principa l use provision, specifying

that classification “is to be determined in accor dance w ith the use

in the Unit

ed States

.

. . of goods of that class or kind to which the imported goods be long.”

ARI 1 (a), HT SUS. Thus, theCourt No. 98- 12-03231 Pag e 25

21 The factors to be considered in determining whether merchandise falls within a particular “class or kind” include: (1) the general phy sical ch aracte

ristics of the merc handise; (2) the c

hannels of trade in which th e merch andise mo ves; (3) the environment of the sale of the merchandise ( i.e. , accompany

ing accessories and the manner in which the merchandise is advertised a nd displayed); (4) the use of the merchandise in the same manner a s merchandise which defines the class; (5) economic practicality of

so using the import; (6) the recognition in the trade of this use; and (7) the expectations of the ultimate purchaser. See Def.’s Brief at 24 ( citing United States v. Carborundum Co. , 63 CCPA 98, 536 F.2d 373 (1976) ).

22 Only select pages of catalog s are i ncluded in the Government’s exhibits. It is thus impo ssib le to fully assess the overa ll organization of the catalogs or to definitively determine whether there a re other “game s” featured alongside the “pre school” merchandise. I n any event, it is worth noti

ng that, for e xample, in th e 1994 ca talog, Po p-Up Wac karoos is

featur ed along with Government

argues, the classification of Pop-Up Wackaroos is controlled by t he “use o f the ‘c lass

or kind’ of merchandise” to which Pop-Up Wackaro os belongs, explaining that goods are of the

same “class or kind” if they are commercially fungible with one another. Def.’s Brief at 23 ( quoting Primal Lite, Inc . v. United States , 182 F.3d 1362 (Fed. Cir. 1999)). The Government asserts that Pop-Up Wackaroos is commercially fu ngible w it h “toy s” “inasmuch

as it moves in the same

channe ls of trad

e as and [i s] advertised, marketed and display ed with other toys.” 21 Def.’s Brief at 24-25. To suppor t that cla im, the Gov ernment

points to various wholesa le catalogs produced by

Fisher-Price. The Government emphasizes that Pop-Up Wackaroos is not listed or feat ured with the merchandise designated a s “games” in the tables of contents and i ndices of the catalogs, but rather with the mercha ndise designated as “preschool.” Th e Governm ent’s ar

gument, in a n

utshe ll, is that F isher

-Pric e itse lf “c lassi f[ied

]” Pop-Up Wackaroos alongside “toys” in its “adver tising and marketing materials,” and that Pop-Up Wackaroos therefore “moves in the same channels of trade as and [is] advertised, marketed and display ed with other toys.” Def.’s Brief at 25-26. 22Court No. 98- 12-03231 Pag e 26

“Pop ’n Pinball ,” which

the cata log desc ribes as an “ele ctronic

pinball game .” See Def.’s Exh. D (emphas is added). Similarly , t he la yo ut, graphics, and text arguably link Pop-Up Wackaroos and Pop ’n Pinball together, and contrast them with the other merchandise on the page. In short, it is not at all clear – from

the few pages in the recor d – what the significance is of the org anization of the catalog s. Even more to the point, it is far from clear that the tables of contents, indices, and lay outs of the ca talogs reflect separate c hannels of trade, separate marke ting, and separate displays. Ind eed , the catalog s may

be read to suggest just the opposite. Toy s and games are marketed together, in one catal og, with whimsi cal and a pparent ly f luid product categories like “L ittle People,” “Super Toys,” and “Great Adventures.” See Def.’s Exh. D. Further, the catalogs themselve s reveal little about channels of trade gener

ally, and nothing a

bout retail trade.

23 The Governm ent’s logic on this poin t is somewh at less than transparent. It is not at all clea r why similarities between hammering and whacking shou ld have any bea

ring on whether Pop-Up Wackaroos is classifiable under heading 9503 as a “toy .” Indeed, the whackinginvolved in playing Pop-Up Wackaroos is virtually identical to the whacking required to play the arcade game Whac-aMole. Yet the Government here concede s that the latter is a “game,”while insisting that the former is not. See Def.’s Brief at 17. The Government further

contends that Pop-Up Wackaroos is “akin to the classic work bench hammer and pegs activity

”of Fisher-Price’s “Tap ’n Tur n Bench,” and is thus also a toy. Def.’s Brief at 26. The Gove rnment assert s, in essence, that the whacking involved in play ing Pop-Up Wackaroos and the hammering used on the Tap ’n Turn B ench “require similar skills,” and that PopUp Wackaroos is “merely a more sophisticated hammer and toy peg activity.” See Def.’s Brief at 27-28. But see n.20, supra (distinguishing Pop-Up Wackaroos from the Tap ’n Turn B ench). 23 In the end, it is unnecessary to reach the merits of the Government’s arguments on this issue. For the reasons outlined below, even assuming that Pop-Up Wackaroos is, in fac t, pri ma facie classifi able as a “toy

,” the me rchandi se is never

theless u ltimately classifi able as a

“game machine” under heading 9504.Court No. 98- 12-03231 Pag e 27

24 Becau se the Go vernment staked its case in this matter entirely on GRI 1, its briefs here include no substantive GRI 3 analy sis. See Def.’s Brief at 22 n.4; Def.’s Reply Brief at 9-10.

25 GRI 3(b) con

cerns th e classif

ication o f “[m]ixtures , composit e goods . . ., and g oods pu t up in sets for retail sale,” and thus has no relevance here. B. GRI 3 : Goods Prima Facie Clas sifi able U nder T wo or M ore Hea dings As d iscuss ed in section II .A.1 above, Pop-Up Wackaroos are prima facie classifiable as “game machin es” under head ing 9504. But, if the merchandise is also prima facie classifiable as “toy s” under heading 9503, then its cla ssification is governed by GRI 3. I n any eve nt, as Mattel observe s, the appli cation of GRI 3 results in classification as “game machines” under he ading 9504. See Pls.’ Brief at 11-13; Pls.’ Reply B rief at 10-11. 24 GRI 3(a) provides that “[t]he heading which provides the most specific description shall be preferred to headings providing a more ge neral description.” Under th is so-ca lled “ru le of relative specificity,”

merchandise is classified under the heading with t he “requi rements that are more difficult to satisfy

and that d

escribe the artic le with the greatest degree of accuracy

and certainty .” Orlando Food Corp. v. United States , 140 F.3d 1437, 1441 (Fed. Cir. 1998). Here, there ca n be no doubt that heading 9504 (which covers “[a]rt icles for arcade, table, or parlor g ames . . .”) is more specific than heading 9503 (which refer s broadly to “[o]ther toys . . .”). Classific ation unde r GRI 3(a) would thus lead conclusively to heading 9504. Moreover, even were headings 9503 and 9504 to be deemed equally specific (such

that GRI 3(a) could not c ontrol), classifi cation un der GRI 3(c) wo uld lead t

o the same

result

. 25 Whe n merchandise cannot be classified pursuant to the other pr inciples of GRI 3, GRI 3(c) dictates that it i s to be classifi ed under

“the hea ding whi ch occu

rs last in numerical order among those whichCourt No. 98- 12-03231 Pag e 28

equally merit con siderati on.” (Emp hasis added.)Whatever

else may remain u nsettled i n the fie ld of customs law, this much is clear: Heading 9503 prece des heading 9504. In sum, all roads lead

to the cla ssificat

ion of Pop- Up Wacka

roos as “ game ma

chines” under heading 9504. To be sure, the mercha ndise is prima facie classifiable under that heading. And even if it also prima facie classifiable as “toy s” under head ing 9503, hea ding 9503 is “trumped” by heading 9504 under both GRI 3(a) and GRI 3(c ).

C. Customs’ Classification Ruling and Skidmore Deference As a final matter, the Government contends that Customs’ interpretation of headings 9503 and 9504 in its r

uling letter in

this case should be accorded Skidmore deference. See Def.’s Brief at 28-35; Def.’s Reply B rief at 10-13. Customs’ ruling letters are entitled to deference proportional to their persuasiveness. United States v. Mead Corp. , 533 U.S. 218, 235 (2001) ( citing Skidmore

v. Swift & Co

. , 32 3 U.S. 134, 140 (1944 )). I n evalua ting the persuas iveness o f a Customs classification

rulin g, facto rs to b e cons idered inclu de “th e writ ers’ t horou ghness , logi c , and expertne ss, [the ruling ’s] fit with prior interpretations, and any other sources of weight.” Id. at 235. Applying those f

actors to this case, Customs’ classification ruling is entitled to no deference

. Customs’ ruling letter was not adop ted pursuant to a deliberative notice and comment rulemaking process. While that fact is by no mea ns determinative, it i s nevert heless an important consideration

in assess ing the f

irst Skidmore factor – the thoroughness of the ruling’ s reasoning. See Str uctural Indus., I

nc. v. United States , 356 F. 3d 1366, 1370 (Fed. Cir. 2004) ( citing RubiesCourt No. 98- 12-03231 Pag e 29

Costume Co., v. United States , 337 F.3d 1350, 1356

(Fed. Ci r. 2003)) ; Russ Berrie & Co., v. United States , 27 CIT ____, ____, 281 F. Supp. 2d 1351, 1353 (2003). Customs fares even worse on the second Skidmore facto r – the log ic of its ruling. As discussed at length above, the agenc y erre d in determining that “a method or system of

scoring ” is

anessential element of a game. The a gency premised its logic and

reasoning on an

incorrect reading of the relevant case law, a distortion (or an ignorance) of dictionar y definitions, and a disreg ard for the common meaning of the tariff term “game.” Cf. Filmtec Co., v. United States , 27 CIT ___, ___, 293 F. Supp. 2d 1364, 1370 (2003) (according no defe rence where Customs relied on an incorre ct reading of the Explanatory Notes and the tariff heading at issue). The logic o f Cust oms’ r ulin g was al so und ermin ed by its r elian ce on p revio us rul ings involving quite different merchandise. Customs bas ed its analysis of whethe r Pop-Up-Wackaroos is a “game” o r a “toy” on previ ous cl assif icati on rul ings involving a set of plastic paddles and two air shuttlecocks (used

in a tossing game), flying f risbee discs, and collectible paperboard drink tops ( see Customs’ Ruling Letter at 3 - 4) – articles that are very different from Pop-Up-Wackaroos (and, indeed, are not even machines). Determining whether an article is a “game” or

a “toy ” is a ver y factinten sive inquiry, turning lar gely on the specific characteristics of the ar ticle in question. Thus , “prior rulings with respect to similar but non-identical items are . . . of little value in assessing the

correctness of the classification of a similar but non-identical item.” Structural Indus., I nc. v. United States , 356 F.3d 1366, 1371 (Fed. Cir. 2004). The third Skidmore factor – the ag ency ’s body

of expert ise – is the

sole fac tor weig

hing in favor of defe rence h ere. I

t is axio matic that Customs has “specialized experience” in theCourt No. 98- 12-03231 Pag e 30

classification

of goods. Mead , 533 U.S. at 534 (quotations omitted). However, that element weighs in favor o f defer ence to every clas sifi catio n ruli ng. Accordingly , it cannot be determinative. Here, it is clea rly outweig hed by other co nsidera

tions. For reasons discussed in section II I.A.1.a above, th e fourth Skidmore factor – the ruling’s consistency

with prior interpretations – also counsels against defere nce in this case. As that

section explains, Cust oms h as not treat ed a “me thod or system of sco ring” as a “hard and fast” require ment for classification as a “game.” Indeed , a s n ot ed th er e, it is un cl ea r w ha t t he ag en cy m ea ns by a “system of scoring .” A final consideration weighing ag ainst deference in this case are the numerous factual errors that pockmar k Customs’ r

uling. F or example , Customs er roneousl y described Pop-Up-Wackaroos

as having five ca vities with

critt er -heads. (There are, in fac t, six.) Customs also stated that the “large red button in the bottom left corner of the unit turns the motor ‘on’ and ‘off.’” In fact, as the Instructions th at ac co mp an y th e m er ch an di se cl ea rl y ex pl ai n, th e r ed bu tt on on ly turns th e game “on.” In addition, Customs indicat e d that a player must hit all of the critter heads “in the correct order.” In fact, the order in which the heads are hit in no way affect s the outc ome of th e game. At first blush, some of those factual errors may seem relatively

minor. But it cannot be assumed that all are irrelevant to Customs’ classification analysis – particular ly since the question of whet her Pop-Up-Wackaroos is a game turns on a de tailed factual analy sis of the pr oduct’ s featur es. And, in an

y e vent, such errors belie an

y su gges tion that th e age

ncy ’s deter

mination r

eflects

anin-depth familiarity with the merc handise. Indeed, the e

rrors in C u stoms’ ruling here are particu larly disconce rting be cause

they did not

appear in the Headquarters De cision Memo, whichCourt No. 98- 12-03231 Pag e 31

predated this rulin g. Compare Customs Headqua rters De cision Me

mo with Customs’ Ruling Letter. In any event, e rrors su ch as the se under

mine the c

redibilit y of the age ncy ’s decis ion-making

. Taking into consideration all of the above factors, the balance t ips decis i vely

agains t Skidmore deference here.

IV. Conclusion For all the re asons set

forth ab ove, Pop- Up Wacka roos is pr operly classifi ed as a “ game machine” under subheading 9504.90.40 of the HTSUS. Mattel’s motion for summary judgmen t is therefore granted, a

nd the Government’s cross-motion is denied. Judgment will enter accordingly

. /s / D el is sa A. Ri dg wa y Judge Decided: August 19, 2004 New York, New York