#### Pistorino & Co., Inc. v. The United States,

No. 79-4

(599 F. 2d 444)

U.S. Court of Customs and Patent Appeals,

June 14, 1979

*Walter E. Doherty, Jr.*(Doherty and Melahn) attorneys of record, for appellant, *Eleanor D. Acheson*(Ropes & Gray) of counsel.

*Barbara Allen Babcock,*Assistant Attorney General, *David M. Cohen,*Director, *Joseph I. Liebman, Susan Handler-Menahem,*for the United States.

[Oral argument on June 4, 1979 by Walter E. Doherty, Jr., for appellant and by Susan Handler-Menahem for appellee.]

Before Markey, *Chief Judge,*Rich, Baldwin, Miller, *Associate Judges,*and Penn,**Judge.*

*

 The Honorable John G. Penn, TJ.S. District Court for the District of Columbia, sitting by designation.

[Per Curiam.]

Appeal from the judgment of the U.S. Customs Court, 81 Cust. Ct. 37, C.D. 4763, 461 F. Supp. 331 (1978). The court held that plaintiff (appellant) had not overcome the presumption of correctness of the classification of the imported figures as “models” under TSUS item 737.15, and had not proven correct its claimed classification as “charts” under TSUS 273.35.

Upon thorough consideration of the record, briefs, and oral arguments, we are in full agreement with the opinion of Judge Maletz and adopt it as our own, adding only the following comments.

*96Appellant’s contention that “use is a relevant factor in establishing *vel non*the identity of the article as a ‘model/ ” is without merit. [2] The common meaning of “model,” as used in TSUS 737.15, and as established by the record evidence and dictionary definitions, neither entails nor requires consideration of the article’s use. The general rule precluding consideration of use in eo nomine designations applies here. See *United States*v. *Quon Quon Company,*46 CCPA 70, 72-73, C.A.D. 699 (1959); *F. W. Myers & Co., Inc.*v. *United States,*24 Cust. Ct. 178, 184-85, C.D. 1228 (1950).

Appellant’s contention that Congress did not intend that the present models provisions should apply to representations of animate objects such as the imported human figures is not supported by legislative history. The Tariff Classification Study, schedule 7, 292 (1960) states that under the Tariff Act of 1930, “models of inventions and other improvements in the arts” were specifically provided for, while the types of models now provided for in items 737.07, 737.09, and 737.15 were dutiable as children’s toys or under various “basket” provisions. Although one purpose of the present provisions was to eliminate disputes over “whether certain models, particularly trains, are ‘toys’ for children or ‘models’ for the use of hobbyists,”  the provisions encompass all models and do not differentiate between the animate and inanimate. The cases cited by appellant, *Associated Hobby Manufacturers, Inc.*v. *United States,*60 CCPA 121, C.A.D. 1093, 475 F. 2d 654 (1973), *Hudson Shipping Co., Inc.*v. *United States,*75 Cust. Ct. 26, C.D. 4606 (1975), and *Polk’s Model Craft Hobbies, Inc.*v. *United States,*42 Cust. Ct. 103, C.D. 2073 (1959), *aff'd,*47 CCPA 137, C.A.D. 746 (1960), are not controlling. Those cases involved different articles and different competing tariff provisions.** Our present conclusion is confirmed by the statement in 4 Summaries of Trade and Tariff Information, schedule 7, 171 (1968), that “[m]odels are three dimensional representations of objects such as * * * the human anatomy * * *.”

In support of its burden of proving the imported figures charts, appellant points to hand-drawn lines on the figures and to the manual accompanying the figures, asserting that each satisfies the “printed matter” requirement of schedule 2, part 5, headnote 1. However, the hand-drawn lines are drawn on machine-made lines embossed on the figures. Thus the hand-drawn lines do not constitute the requisite “textual or pictorial matter,” but are “employed mainly for coloration.” Although appellant’s testimony indicated that the figures would be useless without the accompanying explanatory manuals, the man*97uals are not themselves alleged to be charts.  The evidence as a whole indicates that a manual may accompany either a model or a chart, as those terms are commonly understood, and the presence of the manual cannot therefore control the designation of the imported figures.

Accordingly, the judgment of the Customs Court' is affirmed.

**

 Appellant also points to two Customs Bureau rulings, 99 T.D. 105, T.D. 56111(56) (1964) and 99 T.D. 476, T.D. 56237(19) (1964), that anatomical or biological models were classifiable as rubber or plastic articles not specifically provided for. We note that in a later Customs Bureau ruling, 101 T.D. 437, T.D. 66-157 (23) (1966), anatomical models were classified as “Other models” under TSUS 737.15.