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Court Examines When Items are Available in Sets in Classification Case

Wednesday, June 24, 2015
Sandler, Travis & Rosenberg Trade Report

A recent Court of International Trade ruling addresses when individual dinnerware items are “in the same pattern” for purposes of determining whether they are available in sets.

HTSUS 6912.00.39 covers ceramic tableware available in specified sets in any pattern for which the aggregate value of the articles listed in additional U.S. Note 6(b) is more than $38. The CIT states that for goods to be classified under this subheading they must be in the same pattern and each of the pieces specified in U.S. Note 6(b) (plates, tea cups, platter, open vegetable dish or bowl, etc.) must be sold or offered for sale in that pattern. The plaintiff argued that the 91 cups and mugs at issue in this case meet this requirement because they are part of the pattern of its “Cancun” trademarked line of dinnerware, which is offered in seven solid colors and features a vitrified finish.

Noting that the phrase “in the same pattern” is undefined in the HTSUS or the Explanatory Notes or the case law of the CIT or the Court of Appeals for the Federal Circuit, the CIT goes back more than 50 years to determine that Congress intended HTSUS 6912.00.39 to cover only those items that (1) coordinate in shape, color and decoration and (2) were designed to be used as a set.

With respect to the first point, the CIT states that while it need not always be the case that items of tableware be of the same color to be in the same pattern, in this case the various colors of the cups and mugs are so strikingly different that they cannot be said to coordinate with one another. Even though the plaintiff has trademarked all of the colors under the “Cancun” name, the court adds, this has not transformed items of various strong colors into a single pattern. And while the plaintiff argues that each of the contested cups and mugs are part of the “Cancun” pattern because they share complementary or harmonious colors, the CIT concludes that these items must share the same color as those advertised under the “Cancun” trademark.

With respect to the second point, the CIT states that it must look to the manufacturer’s intent, which may be ascertained by examining evidence such as advertising and marketing materials. Finding that 75 of the 91 cups and mugs at issue are not featured in the manufacturer’s catalog at all and are not displayed as part of the “Cancun” set in the importer’s catalog, the court concludes that none of these 75 items were intended to be used as part of that set. The remaining 16 cups and mugs were designed to be used together as sets with “Cancun” trademarked merchandise in the same pattern, but the court finds that only five are properly classified under HTSUS 6912.00.39 because only these come in either of the two colors associated with the “Cancun” set that each of the items listed in U.S. Note 6(b) is also available in.

The CIT therefore classified the cups and mugs as follows.

- five are classified under HTSUS 6912.00.39 (4.5 percent duty)

- 58 are classified under HTSUS 6912.00.44 as ceramic mugs and other steins (10 percent duty)

- 28 are classified under HTSUS 6912.00.48 as other ceramic tableware (9.8 percent duty)

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