1

 Now known as Berwick Offray, L.L.C.

 Slip Op. 06 -41

UNITED STATES COURT OF INTERNATIONAL TRADE

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BERWICK INDUSTRIES, INC., :

Plaintiff, :

v. : Court Nos. 96-01-00263

 98-12-03189 

THE UNITED STATES, :

 Defendant. :

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Memorandum & Order

[Upon classification of certain decorative bows,

 cross-motions for summary judgment denied.]

 Dated: March 31, 2006

Neville Peterson LLP (John M. Peterson, Maria E. Celis,

Catherine Chess Chen and Laura Martino) for the plaintiff.

Peter D. Keisler, Assistant Attorney General; Barbara S.

Williams, Attorney in Charge, International Trade Field Office,

Commercial Litigation Branch, Civil Division, U.S. Department of

Justice (Mikki Graves Walser); and Office of Assistant Chief

Counsel, International Trade Litigation, U.S. Customs and Border

Protection (Sheryl A. French), of counsel, for the defendant.

AQUILINO, Senior Judge: The above-named plaintiff

importer1

 commenced civil action 96-01-00263 as a test case

pursuant to USCIT Rule 84(b) to challenge classification by the

U.S. Customs Service of certain bows upon entry from the People's

Republic of China under either heading 3926 of the Harmonized
Court Nos. 96-01-00263, 98-12-03189 Page 2

Tariff Schedule of the United States ("HTSUS") as "other articles

of plastics" or heading 6307 as "other made up [textile]

articles", dutiable at 5.3 or 7 percent ad valorem, respectively.

Plaintiff's complaint is that that merchandise more appropriately

landed under HTSUS heading 9505, "festive articles", and

therefore should have been duty free upon entry into the United

States. Defendant's answer disagrees with this position.

 

I 

Following that joinder of issue, the plaintiff

interposed a motion to enlarge the time for the action to remain

on the reserve calendar pursuant to USCIT Rules 7 and 84, which

motion was granted on the ground that the parties were

"discussing the method in which the issues of the . . . action

may best be resolved in an effort to conserve judicial

resources". Plaintiff's Motion to Enlarge Time in Which Action

May Remain on Reserve Calender, second page. Some two years

later, the court requested that counsel apprise it of the

matter's status. When another year and a half had passed, the

court was constrained to inquire "why the above test case should

not be dismissed . . . pursuant to USCIT Rule 41(b)". Plaintiff's counsel responded that they
Court Nos. 96-01-00263, 98-12-03189 Page 3

had refrained from active litigation of this matter

pending final resolution of the Park B. Smith case, to

determine if the resolution of that case might be

dispositive of the classification of its Trim Time

bows. While plaintiff believes that the Federal

Circuit's decision in Park B. Smith[, Ltd. v. United

States, 347 F.3d 922 (Fed.Cir. 2003),] favors its view

regarding the tariff classification of Trim Time Bows,

it does not appear that that decision will be

dispositive of the classification of its merchandise.

Furthermore, [the] Park B. Smith appellate

decision is not yet final. The Federal Circuit is, as

of this writing, considering a petition for reconsideration submitted in that case . . .. The Federal

Circuit has remanded the matter to this Court, with

directions for the Court to make further findings with

respect to the merchandise there at bar. 

Accepting this explanation, the court granted plaintiff's request

for a scheduling conference, which was held shortly thereafter. 

 

The parties were in agreement that the Federal

Circuit's denial of plaintiff's petition for reconsideration in

Park B. Smith effectively cleared the way for disposition of this

test case. The court also inquired as to the status of

plaintiff's seemingly-related action, CIT No. 98-12-03189, to

which the plaintiff intimated the possibility of consolidation.

That initial reaction apparently faded prior to the

drafting of the parties' proposed scheduling order, which

continued to treat the two actions separately. The court
Court Nos. 96-01-00263, 98-12-03189 Page 4

thereupon expressed its "displeasure over the lack of any proposal with regard to final disposition of CIT No. 98-12-0[31]89",

and it also inquired "whether or not that void c[ould] be filled

via default judgment". In response thereto, the plaintiff submitted a proposed scheduling order for that action. 

 

Nonetheless, the undersigned remains uncertain why the

parties have not consolidated or suspended the later-commenced

action with (or in the light of) the earlier-initiated test case.

To borrow plaintiff's own words, "judicial resources can best be

conserved by avoiding active litigation of multiple suits dealing

with the same issue". Here, not only does the subject matter

seem to be the same, so too the underlying legal issue, namely,

whether plaintiff's merchandise should have been classified under

HTSUS heading 9505 as "festive articles". Compare Complaint No.

98-12-03189 . . .

 12. The festive bows: Veltex Perfect, Perfect 

Netting, and Trim-Time Bows are colored red, gold,

silver, and tartan plaid, which are colors evocative of

the Christmas season.

 13. The festive bows are primarily ornamental in 

nature.

 14. The festive bows are intended to be displayed

and used during the Christmas holiday season, and are

designed to contribute to the joy and festivity of the

holiday.
Court Nos. 96-01-00263, 98-12-03189 Page 5

 15. Because they are designed and manufactured

for the Christmas holiday season, the Veltex Perfect,

Perfect Netting, and Trim-Time Bows are properly

classifiable under HTS Subheading 9505.10.2500, as

festive articles, specifically as articles for

Christmas festivities: Christmas ornaments, other,

other; or under HTS Subheading 9505.90.6000, as festive

articles, specifically as other festive articles,

other, other. Under these subheadings, these bows are

entitled to enter the United States unconditionally

free of duty. As products of the People's Republic of

China, these festive bows are entitled to enter the

United States without regard to any textile quota

restrictions, and without the presentation at the time

of entry of any textile visas. Customs erred in

classification of such bows under HTS Subheadings

3926.40 or 6307.90.99. . . .

with Complaint No. 96-01-00263 . . . 

 5. The merchandise which is the subject of this

case consists of certain "perfect bows" and "trim time"

bows for festive occasions, which plaintiff imported

into the United States at the Port of Newark, New

Jersey.

 6. The perfect bows are composed of textile

materials, and are designed specifically for use as

Christmas ornaments. The "trim time" bows are composed

of polypropylene plastics materials, and polypropylene

netting, and are specifically designed for use as

festive articles, to be displayed in connection with

certain holidays and festive occasions.

* * *

 14. The plastic and textile bows are properly

classifiable under HTS subheading 9505.10.25, as

"Festive, carnival or other entertainment articles,

including magic tricks and practical joke articles;

parts and accessories thereof; Articles for Christmas

festivities and parts and accessories thereof;

Christmas ornaments; Other", and are entitled to enter

the United States unconditionally duty free.
Court Nos. 96-01-00263, 98-12-03189 Page 6

2

 Complete capitalization deleted.

 15. Alternatively, the plastic and textile bows

are properly classifiable under HTS subheading

9505.90.60, as "Festive, carnival or other entertainment articles, including magic tricks and practical

joke articles; parts and accessories thereof; Other:

Other:[",] and are entitled to enter the United States

unconditionally duty free.

Given the foregoing, and in an effort to adhere to the principles

set forth in USCIT Rule 1, the court will henceforth consider the

above-numbered actions as if they have been consolidated. See

USCIT Rule 42(a):

When actions involving a common question of law or

fact are pending before the court, . . . it may order

all the actions consolidated . . .; and it may make

such orders concerning proceedings therein as may tend

to avoid unnecessary costs or delay.

A

Indeed, the plaintiff has now interposed a motion for

summary judgment accompanied by a required Statement of Material

Facts Not in Dispute2

 combining the two actions, to wit:

A. Procedural History for Case Number 96-00263

 1. From January 1995 through February 1995 and 

from July 1997 through September 1997, plaintiff

imported the subject festive bows into the United

States from the People's Republic of China.
Court Nos. 96-01-00263, 98-12-03189 Page 7

 2. Beginning January 1995 through February 1995,

plaintiff entered the subject bows under cover of

Newark, New Jersey Consumption Entries, 743-0053169-1,

743-0053251-7, 743-0053318-4, and 743-0053023-0. These

entries liquidated in May and June of 1995.

 3. Defendant[] U.S. Customs . . ., . . . classified the subject bows at liquidation under Subheadings 3926.40.00, 3926.90.9890, and 6307.90.99 of

the . . . HTSUS[]. Subheading 3926.40.0000 described,

"Other articles of plastics and articles of other

materials of headings 3901 to 3914: Statuettes and

other ornamental articles," and goods that are

classified therein are subject to a 5.3% import duty ad

valorem. Subheading 3926.90.9890 described, "Other

articles of plastics and articles of other materials of

headings 3901 to 3914: Other:Other:Other," and imposes

an import duty of 5.3% ad valorem on goods that are

classified as such. Subheading 6307.90.99 described

"Other made up articles, including dress patterns:

Other: Other: Other: Other: Other." Goods entered

under this subheading were subject to a textile quota

and an import duty of 7% ad valorem. 

 4. On June 21, 1995, Berwick filed Protest number

1001-95-105544 objecting to the classification and duty

assessed at the liquidation of the subject entries, and

claiming classification under HTSUS Subheading

9505.10.2500, as "Festive, carnival or other

entertainment articles . . . .: Articles for Christmas

festivities and parts and accessories thereof: Christmas ornaments: Other" or under HTS Subheading

9505.90.6000, as "Festive, carnival or other entertainment articles . . [.]:Other: Other," enterable duty

free.

 5. On August 18, 1995, Customs denied Berwick's

Protest . . .. On January 23, 1996, Berwick timely

commenced case number 96-01-00263 before the Court of

International Trade.

 6. All duties were tendered prior to the 

commencement of this action.
Court Nos. 96-01-00263, 98-12-03189 Page 8

B. Procedural History for Case No. 98-[]03189

 7. From July 1997 through September 1997, plaintiff entered the subject merchandise under cover of New

York Consumption Entries, 743-0060717-8, 743-0061145-1,

743-0061243-4, 743-0061188-1, 743-0061283-0, and 743-

0060859-8. Customs liquidated these entries between

May and July 1998, and classified the merchandise under

HTS Subheadings 3926.40, and 6307.90.89, as other

plastic articles and other made-up textile articles.

 8. On August 18, 1998, Berwick filed a protest

1001-98-103164 objecting to the classification and duty

assessed at liquidation of the subject entries and

claiming classification under HTSUS Subheading

9505.10.2500, as "Festive, carnival or other entertainment articles . . . .: Articles for Christmas

festivities and parts and accessories thereof:

Christmas ornaments: Other" or under HTS Subheading

9505.90.6000, as "Festive, carnival or other

entertainment articles . . [.]: Other: Other,"

enterable duty free. 

 9. On November 27, 1998, Customs denied Berwick's

Protest . . . against the classification of festive

bows on the ground that Customs' classification was

correct. Plaintiff Berwick timely commenced case

number 98-12-03189 before the Court of International

Trade on December 2, 1998. 

 10. All duties were tendered prior to the

commencement of this action.

C. Description of Merchandise

 11. Plaintiff's imported merchandise that are the

subject of this action consist[] of three types of

festive bows. Each bow manifests a decorative scheme

consistent with the Christmas holiday season. The

Perfect Bow is a festive bow that is flocked with

acrylic on the front surface to give it a velvet

texture and, once assembled, boasts fourteen (14) to

twenty (20) loops. At retail, these bows are arranged
Court Nos. 96-01-00263, 98-12-03189 Page 9

3

 Upon inquiry by the court at oral argument, plaintiff’s

counsel stated that there were no “white” bows at issue herein.

Nonetheless, the physical exhibits provided by the defendant in

Attachment A to the Supplemental Declaration of Joan Mazzola,

specifically, items numbered PF3, PFN9, PFN40, PFR9, appear to be

white or a variation thereof. See also Plaintiff's Statement of

Material Facts Not in Dispute, para. 14; Plaintiff’s Attachment B4, unnumbered third, seventh and eleventh pages. 

within a green box in a festive display of green,

plaid, and red. The Holiday Classic Bow is long, by

design so that it can be extended vertically across a

Christmas wreath or dangled gracefully from a mantle.

Like the Perfect Bow, the Holiday Classic Bow is

flocked with acrylic to give it a festive velvet

texture, a characteristic associated with the Christmas

holiday. The typical red large Holiday Classic Bow,

made from a material ex as "Veltex," is designed to be

used on a Christmas wreath, or hanging, unaccompanied,

from a store window or the doorpost of a home. The

Trim-Time Bow is an intricately designed bow with a

large size tie at its center. This Christmas bow is

sold exclusively in Berwick's Trim-A-Tree Line through

Trim-A-Tree line departments at retail stores and

special holiday retailers.

 12. The Perfect Bow, Holiday Classic Bow, and

Trim-Time Bows are designed, sold as and used as

holiday decorations for home and commercial

furnishings. The bows are principally used as holiday

decorations for wreaths, Christmas trees, mantels,

walls, and window-sills in addition to a variety of

other holiday-related uses. The bows are sold in

traditional Christmas colors like, red, gold, tartan

plaid, silver and are sold exclusively during the

Christmas season.[3] All of these bows feature a cord or

tie at the center of the back of the bow, in order for

the bow to be easily hung, by nail or thread, as an

ornament or decoration. The subject items do not

include adhesive material, tape, or any other means by

which they may be affixed to objects.

13. As noted, the subject bows are principally

designed for the purpose of creating a festive bow used
Court Nos. 96-01-00263, 98-12-03189 Page 10

for decorating a home or commercial space during the

Christmas season. As such, the bows are made of either

extruded polypropylene or wire-edged woven textile,

fibers that, although sturdy, allow for more creative

freedom than wood or steel. These materials are also

water resistant, which allow them to be used as

decorations outside the home. Further, the durability

and weightlessness of these fabrics allow the

decorative bows to be easily stored and re-used during

subsequent holiday seasons.

The Perfect Bow

14. The Perfect Bow, depicted at Exhibit A, is

designed primarily for the purpose of creating a

festive bow that is used to decorate a home or

commercial space during the Christmas season. It

includes two strips that may be pulled to produce a bow

with fourteen (14) to twenty (20) loops, an amount that

far surpasses the number of loops in an ordinary,

disposable ribbon. This bow is about 2" - 8" long,

features ribbon about 2 inches wide, and is available

in colors such as white, red, gold, silver, emerald,

copper, navy, and champagne. The bow is made of Veltex

which is extruded polypropylene with a flocked front

surface. The flocked polypropylene gives the surface a

heavy velvet appearance, which increases aesthetic

appeal and facilitates the bow's use during the

potentially harsh weather of December. The Veltex

material also increases durability, which keeps the bow

intact during use through the Christmas season, while

in storage, and during subsequent holiday seasons.

15. Berwick's retail packages instruct that the

Perfect Bow may be used for "Christmas trees," "home

decorating," and "wreaths." Thus, the ultimate

consumer would expect to use the article to create a

Christmas ambiance in the home or store, by hanging it

directly upon a house fixture, or by accessorizing a

Christmas tree or wreath. Again, Berwick's retail

display box for the Perfect Bow is green and the bows

are arranged in a festive display of green, plaid, and

red designs. Berwick's bows are sold in seasonal
Court Nos. 96-01-00263, 98-12-03189 Page 11

sections of general merchandise and craft stores, as

well as the holiday catalogs of Berwick.

Holiday Classic Bows

16. The Holiday Classic Bows, shown at Exhibit B,

are designed primarily for use as festive decorations

during the celebration of Christmas, in the home or

business. This festive bow ranges in size from 3" -

22" long and 3" - 10" wide. Berwick fashioned its

design to create a proportional fit with a Christmas

wreath or tree. These bows feature two (2) to seven

(7) loops and are available in red, green, gold, silver. Some bows depict images largely associated with

Christmas, such as candy-cane stripes, hollies, etc.

These bows are made from polypropylene ribbon, i.e.

Veltex, plus acetate satin, vinyl, or PET/Polyester

"Supersilk" material. Like the Perfect Bow, the Holiday Classic Bow was designed with a flocked polypropylene to give the surface a heavy velvet appearance, a

design characteristic that increases aesthetic appeal

and allows it to withstand the inclement weather if

used to decorate the outside of a home during the winter months. The Veltex material also increases durability, which keeps the bow intact for use during the

Christmas season, while in storage, and during subsequent holiday seasons.

17. The advertising brochure, at Exhibit B, depicts several uses for the Holiday Classic Bow: a red

bow affixed to a wreath, hanging against an interior

wall; and two red bows affixed against a mantle, beneath a green wreath. Advertised on the retail packages are the words, "Home Decorating." It follows that

the ultimate purchasers of the bows would expect to use

them as festive decorations. Their channels of trade

include seasonal sections of general merchandise and

craft stores, as well as Berwick's holiday catalogs.

Trim-Time Bows

18. The Trim-Time Bows, depicted at Exhibit C,

are designed to be tied to home fixtures, e.g. mantles,

Christmas trees, etc. and are typically use[d] with
Court Nos. 96-01-00263, 98-12-03189 Page 12

other festive decorations to bolster the spirit of the

Christmas season. The Trim-Time Bows are highly decorative festive bows which are approximately 5" - 20"

wide, 8" - 20" long, and feature intricately designed

ribbons and ties. These bows are made of wire-edged

woven textile and incorporate traditional Christmas

colors of red and green plus a tartan plaid. The wire

edges enable the bows to maintain their shape during

each and subsequent holiday season. They are available

in various colors like silver, gold, green, blue, burgundy, and in a holly pattern – a quintessential symbol

of Christmas. 

19. The Trim-Time Bows are sold exclusively as

holiday decorations for wreaths in Berwick's Trim-ATree line to retail stores as well as special holiday

retailers. These items are sold in the seasonal sections or festive product sections of retail stores.

The ultimate purchaser would expect to use the bow as a

decoration during Christmas, given that the advertisement on the Trim-Time Bow retail package . . .

describes the item as "Home Décor Bow" and suggests to

consumers the following uses: "On the Mantelpiece;"

"Over a Doorway;" "As a Centerpiece;" and "On a Window."

20. All of the subject bows are designed with two

fabric strips that allow the items to be easily tied to

wreaths, Christmas trees, or other fixtures as a hanging home ornament. That the bows are not designed with

adhesive strips on the reverse-side preclude them from

being easily affixed to gifts or packages. All of

these bows are packaged on hanging cards with the term

"Home Decorating" or with instructions on how to construct (for purposes of the Perfect Bow) or display the

bow. The cover of Berwick's 2000 catalogue includes a

photograph of its bows positioned on a platform, along

with a miniature Christmas tree sculpture, several

hanging holiday ornaments, poinsettias, and a figure

bearing a Christmas theme . . .. These items are marketed as home decorating supplies in the holiday sections of supermarkets, craft stores, or department

stores. 
Court Nos. 96-01-00263, 98-12-03189 Page 13

21. These bows are not intended to be used to

wrap or decorate packages, because they are designed to

be ornaments and big enough to decorate trees, rooms,

mantels, wreaths, etc. Furthermore, they are not ribbons which can easily be tied around a package. To

celebrate the Christmas Holiday, these bows are sold to

provide merriment as they decorate the home, churches,

storefronts, window displays, and all other areas requiring Christmas cheer. 

22. Since these bows (1) are intended for use,

(2) are used as ornaments and decorations during the

holidays, and (3) are marketed as such, the subject

merchandise should be classified under HTS Heading 9505

as festive articles. 

Italics, boldface, and underscoring in original.

In its response, the defendant admits foregoing paragraphs 2, 5, 6, 8, and 10 but denies in sum and substance all of

the others. It is, however, of some moment to emphasize defendant's averments as to the following:

 15. Denies. Avers that, according to Plaintiff's

Exhibit A, the Perfect Bow is "Great For Use On[] Baskets, Christmas Trees, Crafts, Floral Arrangements,

Gift Packaging, Home Decor, [and] Wreaths." Further

avers that the Perfect Bow is depicted as a bow on a

gift box.

Holiday Classic Bows

16. Denies . . .. Avers that the pages depicting

bows in Plaintiff's Exhibit B do not refer to [] any

bows as "Holiday Classic Bows." Further avers that the

descriptions and dimensions of the articles depicted in

Exhibit B (on the page marked "40") provide that the

depicted articles are actually ribbons and not "bows"
Court Nos. 96-01-00263, 98-12-03189 Page 14

4

 Complete capitalization deleted.

as alleged in this paragraph. Further avers that,

based on the item numbers corresponding to the bows

depicted, none of the bows depicted in Plaintiff's

Exhibit B are the subject of these actions. 

17. Denies . . .. Further avers that the depiction contained on the first page of Plaintiff's Exhibit

B merely states "Veltex" and there is no indication

that the articles depicted on that page are the articles at issue in these actions. Admits that retail

packages depicted in Plaintiff's Exhibit B state "Home

Decorating." . . .

Trim-Time Bows

18. Denies . . .. Avers that the depiction contained in Plaintiff's Exhibit C merely state[s] "Golden

Shimmer" and do[es] not state "Trim-Time Bow." Further

avers that there is no indication that the articles

depicted in Plaintiff's Exhibit C are the articles at

issue in these actions.

19. Denies that the retail packages depicted in

Plaintiff's Exhibit C refer to the depicted articles as

“Trim-Time Bows"; admits that the retail packages depicted in Plaintiff's Exhibit C state "Home Decorating." . . .

B

 This response has been served and filed in conjunction

with a cross-motion for summary judgment that contains defendant's own Additional Statement of Material Facts As To Which

There Is No Genuine Issue To Be Tried4

, the most pertinent of

which include:
Court Nos. 96-01-00263, 98-12-03189 Page 15

 5. Berwick has limited its causes of action to

only those imported bows which are in the following

colors: red, green, gold[,] silver and tartan plaid 

. . .. Therefore, it has abandoned its claims regarding all [other] bows contained in the entries. 

* * * 

 6. Berwick has seven product retail divisions for

the bows which it manufactures and sells: Christmas

Retail, Trim Time Retail, Everyday Retail, Floral

Wholesale, Craft Retail, Packaging Wholesale, and Custom. . . . These divisions cross-merchandise and market bows of a variety of materials, colors, and styles,

i.e., bows sold in one division are also advertise[d]

and sold through other divisions. . . .

7. Berwick's Christmas Retail Division offers 

product lines, such as Christmas Classic, Brilliance

and Ribbon Magic, which sell ribbons and bows for

Christmas packaging. . . .

8. Berwick's Trim Time Retail division offers bows

for every decorating need and offers in color themes

that trend with the home decor market. . . .

9. Berwick's Everyday Retail Division offers creative options for both gift packaging and party decor

in a variety of colors, and these bows are similar to

the bows in Berwick's Christmas Retail division. . . .

Bows sold through this division are used for gift wrap,

gift bags, balloons and party supplies. . . .

10. Berwick's Floral Wholesale division supports

the floral distributors market. Berwick's Flora-Satin

product category is offered through this retail division for every occasion. . . . 

11. Berwick's Craft Retail division offers a wide

range of bows designed to accessorize any craft project, "regardless of the season." The bows sold to the

craft market include Veltex, Flora-Satin (printed and

solid), Wraphia, curling ribbon, Perfect Bows, and Curl

Swirls. . . . 
Court Nos. 96-01-00263, 98-12-03189 Page 16

12. As the world's largest manufacturer and distributor of decorative bows, Berwick sells bows yearround. . . .

13. Bows are decorative articles manufactured,

marketed and sold year-round for a variety of purposes.

. . .

14. Bows are principally used in connection with

gift wrapping/packaging. . . . 

15. Bows [are] made from a variety of material and

marketed in many colors and patterns through many channels of trade year-round. . . . 

16. Bows have a variety of uses, e.g., decorating

gifts, houses, rooms, corsages, plants, hanging baskets, floral arrangements, gift wrapping, pews and

centerpieces. . . .

17. The bows at issue are manufactured, imported,

marketed and sold in different colors. 

18. Neither the styles, sizes, colors, nor other

characteristics of the imported bows preclude their use

as gift wrapping bows and/or at times of the year other

than Christmas. . . . 

19. None of the commercial papers describe the

imported merchandise as being "Holiday Classic Bows."

Citations omitted.

In its response, the plaintiff admits paragraphs 16 and

17 but denies 5, 13-15, and 18. As for the others, the plaintiff: 

6. Admits that Defendant's Exhibit 1 speaks for

itself. Denies the remaining allegations. Avers that

most of Berwick's Christmas bows are marketed during

Christmas and in specific catalogs.
Court Nos. 96-01-00263, 98-12-03189 Page 17

7. Admits and avers that the Christmas Retail

Division not only sells Christmas packaging but Christmas decorations and ornament-like bows.

8. Admits and avers that Trim Time Bows at issue

are designed for use as Christmas decorations.

9. Denies and avers that most of the subject merchandise is not offered in Berwick's Everyday Retail

Division for gift wrap, gift bags, balloons, and party

supplies. The Perfect Bow may be used for packaging

but is principally designed to be used for home or

other decor at such festive events as Christmas.

10. Admits and avers that the subject merchandise

is not generally sold through the Floral Wholesale

Division.

11. Admits and avers that the subject merchandise

is not generally sold through the Craft Retail Division.

12. Admits and avers that plaintiff does not sell

most of the subject Christmas bows year-round.

19. Admits that the invoices and entry papers do

not mention "Holiday Classic Bows." However, avers

that all the 1996 and 1997 Christmas Catalogs, as well

as the packaging for the subject bows describe some of

the imported merchandise as "Holiday Classic Bows."

II

Both parties contend that the matter at bar can be

resolved via summary judgment. See, e.g., Memorandum of Points

and Authorities in Support of Plaintiff's Motion for Summary

Judgment ("Plaintiff's Memorandum"), p. 8; Memorandum in Opposition to Plaintiff's Motion for Summary Judgment and In Support of

Defendant's Cross-Motion for Summary Judgment ("Defendant's Memo-
Court Nos. 96-01-00263, 98-12-03189 Page 18

5

 Note 2(v) was formerly Note 2(u).

6

 Chapter 63 falls thereunder.

7

 "Section and Chapter Notes are not optional interpretive

rules, but are statutory law, codified at 19 U.S.C. §1202." Park

B. Smith, Ltd. v. United States, 347 F.3d 922, 926 (Fed.Cir. 2003)

(citation omitted). Cf. Midwest of Cannon Falls, Inc. v. United

States, 122 F.3d 1423, 1429 (Fed.Cir. 1997).

randum in Opposition"), p. 9. The court tested this thesis by

subjecting them to oral argument. Alas, upon careful review and

reflection, the court cannot concur. See, e.g., Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986):

. . . [S]ummary judgment will not lie if the dispute

about a material fact is "genuine," that is, if the

evidence is such that a reasonable jury could return a

verdict for the nonmoving party.

 

Jurisdiction to hear and decide this matter is predicated upon 28 U.S.C. §1581(a) and §2631(a). The dispositive

issue herein is whether plaintiff’s bows are prima facie classifiable as “festive articles” under HTSUS heading 9505. If so,

the contested classification would be erroneous on its face per

Note 2(v)5

 of Chapter 39 and Note 1(t) of Section XI6, both of

which indicate that the tariff provisions thereunder do not cover

"[a]rticles of Chapter 95". See General Rule of Interpretation 1:

. . . [F]or legal purposes, classification shall be

determined according to the terms of the headings and

any relative section or chapter notes[.7

] 
Court Nos. 96-01-00263, 98-12-03189 Page 19

A

To determine whether plaintiff’s bows are classifiable

under HTSUS heading 9505, the court must first ascertain the

meaning of that tariff provision. See, e.g., Rollerblade, Inc.

v. United States, 282 F.3d 1349, 1352 (Fed.Cir. 2002). That

inquiry is unnecessary herein as the meaning thereof, and more

specifically, the term “festive articles”, has been defined by

the Court of Appeals most recently in Russ Berrie & Co. v. United

States, 381 F.3d 1334, 1336 (Fed.Cir. 2004), quoting Park B.

Smith, Ltd. v. United States, 347 F.3d at 927, in turn citing

Midwest of Cannon Falls, Inc. v. United States, 122 F.3d 1423,

1429 (Fed.Cir. 1997), to wit:

. . . [C]lassification as a “festive article” under

Chapter 95 requires that the article satisfy two criteria: (1) it must be closely associated with a festive

occasion and (2) the article is used or displayed principally during that festive occasion. 

In Russ Berrie, the court found that

[s]nowmen decorated with holly, ghosts, and witches'

and monsters' heads are symbols that are closely associated with the Christmas and Halloween holidays and

are used principally on those occasions.

381 F.3d at 1336 (emphasis added). In Park B. Smith, the Federal

Circuit had stated that 

articles with symbolic content associated with a particular recognized holiday, such as Christmas trees,
Court Nos. 96-01-00263, 98-12-03189 Page 20

Halloween jack-o-lanterns, or bunnies for Easter, are

festive articles[,]

but those 

articles that might be associated with a particular

holiday because of their color schemes, but having no

symbolic content, such as a red and green plaid, do not

meet the . . . criteria for festive articles under

Chapter 95.

347 F.3d 929. 

 Given this meaning for “festive articles”, this court

can move to the second, factual inquiry articulated in Rollerblade, 282 F.3d at 1352, namely, whether the goods at issue herein land within that meaning -- in other words, whether they satisfy the criteria enumerated above. 

(1)

 In an attempt to satisfy number (1), supra, the plaintiff presents three arguments, the first of which is that 

bows possess a historical association with Christmas.

Symbolically, bows reflect the "spirit of brotherhood,"

and their use during the Christmas season suggests that

humankind is "tied together with bonds of goodwill."

Plaintiff's Memorandum, p. 13, quoting Symbols of Christmas,

http://www.ywconnection.com/Holiday/pageHsymbolsofchristmas.html

(last visited March 31, 2006). This citation to an anonymous,

presumably-personal, website hardly reveals how the "spirit of
Court Nos. 96-01-00263, 98-12-03189 Page 21

8

 See, e.g., Skoros v. City of New York, 437 F.3d 1, 9-10, 28-

29 & n. 24, 51-52 (2d Cir. 2006).

9

 Plaintiff’s Memorandum, p. 12, citing Tim Shearer Affirmation, paras. 7, 9. See also Russ Berrie & Co. v. United States,

381 F.3d 1334, 1336 (Fed.Cir. 2004).

10 Also displayed at the podium during oral argument. 

brotherhood" is actually bound to Christmas, whether one considers that holiday in the light of either its religious8

 origin or

its current commercial significance. 

 

Secondly, the plaintiff claims that “[t]oday, the bow

is as ubiquitous a symbol of Christmas as the greenery it

decorates”. Plaintiff’s Memorandum, p. 13. This broad generalization seems to derive solely from the following sentence: “Indeed, it is rare to see a Christmas wreath or garland without a

large bow.” Id. (citations omitted). While this could be true,

the relevance thereof seems to attach to the second requirement--

that the merchandise be used or displayed principally during a

festive occasion. See Russ Berrie & Co. v. United States, supra.

Third, the plaintiff argues that "some of the Holiday

Classic and Trim-Time bows display traditional Christmas symbols,

such as candy-cane stripes and holly"9

, to which end it also provides Physical Exhibit #1 (Trim-Time)10 depicting what appear to

be holly branches. For support, counsel reference paragraphs 7
Court Nos. 96-01-00263, 98-12-03189 Page 22

and 9 of the affirmation of Tim Shearer. Neither, however, substantiates that any of the bows at issue "displays traditional

Christmas symbols". Rather, paragraph 9, which discusses the

physical characteristics of Holiday Classic bows, merely states

that they "may feature patterns such as candy-cane stripes,

holly, etc.", while number 7 makes no mention of candy-cane

stripes, holly, or any other alleged traditional Christmas symbol. Emphasis added. Cf. Defendant's Exhibit 10, Supplemental

Declaration of Joan Mazzola, para. 5:

. . . Physical Exhibit #1 . . . has what appears to be

a textile bow with a holly on it. However, I was not

aware that any of the bows at issue here contained

holly on them.

Nor does plaintiff's Attachment A, listing each bow individually by protest, entry, category, and item number, support such a

conclusion. 

 Despite this inconsistency, and the seemingly tenuous

evidence produced by the plaintiff as to the bows' being symbols

of Christmas, at this stage in the action(s) the court cannot

weigh that evidence or make credibility determinations with regard thereto. See, e.g., Anderson v. Liberty Lobby, Inc., 477

U.S. at 255. 
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11 See Additional U.S. Rule of Interpretation 1(a):

. . . [A] tariff classification controlled by use (other

than actual use) is to be determined in accordance with

the use in the United States at, or immediately prior to,

the date of importation, of goods of that class or kind

to which the imported goods belong, and the controlling

use is principal use[.]

Principal use has been defined as a use "which exceeds any other

single use". Lenox Collections v. United States, 20 CIT 194, 196

(1996) (italics in original). 

12 See Warner-Lambert Co. v. United States, 28 CIT ___, ___,

341 F.Supp.2d 1272, 1281 (2004), aff'd, 425 F.3d 1381 (Fed.Cir.

2005), quoting Len-Ron Mfg. Co. v. United States, 334 F.3d 1304,

1311 (Fed.Cir. 2003).

13 See Primal Lite, Inc. v. United States, 182 F.3d 1362, 1364

(Fed.Cir. 1999). 

(2)

 

 Should the plaintiff be able to substantiate that

"closely associated” requirement at trial, it still must satisfy

the second -- that its goods are used or displayed principally11,

in other words, predominantly12 or ordinarily13, as festive decorations during the Christmas holiday. Cf. Plaintiff's Memorandum, pp. 14, 17-23; Plaintiff's Statement of Material Facts Not

in Dispute, paras. 12-22. Here, this contention is not without

challenge. Defendant's position is that the bows at issue are 
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14 See Defendant's Memorandum in Opposition, pp. 19-26;

Defendant’s Additional Statement of Material Facts As To Which

There Is No Genuine Issue To Be Tried, paras. 7, 9, 13-14, 18;

Defendant's Exhibit 10, Supplemental Declaration of Joan Mazzola,

para. 6:

. . . Bows are decorative articles used as a part of

packaging, i.e., gift-wrapping. For example, tissue

paper is used in packaging as decoration and/or to

protect the packaged article, but is not itself a

package. Plastic sheets, which are often used in place

of tissue paper, are likewise not a package but are used

as part of the packaging system to protect the packaged

article. Similarly, bows are not themselves packages,

but are used in the process of packaging, including giftwrapping.

15 Their positions were also well articulated by counsel at

oral argument. 

principally used in connection with gift-wrapping.14

In support of their respective positions and in

accordance with USCIT Rule 56(e), each party has submitted affidavits attesting to the principal use of the bows at issue.15

Those affidavits primarily focus on the factors outlined in

United States v. Carborundum Co., 63 CCPA 98, 102, C.A.D. 1172,

536 F.2d 373, 377, cert. denied, 429 U.S. 979 (1976). See

Plaintiff's Memorandum, pp. 17-23; Defendant's Memorandum in

Opposition, pp. 20-26. Having studied those affidavits, namely,

of Alice Wong and Joan Mazzola for the defendant; and of Tim

Shearer, Bruce Kerr, and Stella Troman for the plaintiff, the
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16 Compare, e.g., Defendant's Exhibit 10, Supplemental

Declaration of Joan Mazzola, para. 8: 

. . . Based on the advertising and sales practices of 

. . . retailers, it is my opinion that bows, including

the perfect bows and other bows at issue in this action

. . . belong to a class or kind of bow that is

principally used for packaging, including giftwrapping[,]

with Plaintiff's Memorandum in Opposition, Affirmation of Bruce

Kerr, para. 13:

. . . [T]hese bows are sold principally during the

Christmas holiday season to decorate all manner of public

and private spaces, including homes, churches, and

storefronts. 

court is unable to reconcile the competing statements16 contained

therein without a trial where the aforementioned affiants can be

subjected to cross-examination, "which has been said to be the

surest test of truth and a better security than the oath."

Hanover Ins. Co. v. United States, 25 CIT 447, 458 (2001). 

III

In view of the foregoing, the parties' cross-motions

for summary judgment must be, and they hereby are, denied. Counsel are directed to confer and propose to the court on or before

April 28, 2006 a schedule for trial of those issue(s) of fact
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which are not already agreed to herein and which cannot be stipulated to in a pretrial order.

So ordered.

Dated: New York, New York

 March 31, 2006

 Thomas J. Aquilino, Jr. 

 Senior Judge