Wednesday, January 07, 2015

Infantino in a Flash

Infantino, LLC v. United States

Parents of a certain socio-economic status want to protect their small children from real and perceived dangers including the horrible wire and plastic seats on grocery store shopping carts. You have, no doubt, seen chubby baby legs kicking their way through the square wire openings while parents meet in the produce section to commiserate over the price of soccer cleats and debate which local orthodontist has the best espresso machine in the parents' lounge. Happily, there is a solution in the form of the Funny Farmer Shop & Play 2-in-1 play mat from Infantino.

This product is a play mat printed with a farm theme and having detachable toys. It also includes features that make it suitable for use in a shopping cart. Those features include a waist belt, leg flaps, pea pod shaped pillow bolster, and hook and loop closures to secure it to the otherwise offensive shopping cart seat. According to the related advertising, the Funny Farmer is perfect for "tummy time" and turns a shopping cart "into a clean, comfy activity center."

Infantino imported the Funny Farmer and classified it in 9404.90.20 as articles of bedding and similar furnishings. After importation, Infantino had a flash of insight and protested the liquidation. Infantino asserted that the correct classification is in 9503.00.00 as a toy. Customs and Border Protection denied the protest, which was consistent with an earlier ruling issued to Infantino. In the culmination of an elongated process, the Court of International Trade has now decided the classification.

Given that the Funny Farmer is a padded mat, the court had no difficulty finding that it is prima facie classifiable in Heading 9404. The question requiring more detective work was whether the product is also a toy.

A toy, for classification purposes, is something which is primarily designed and used for pleasurable diversion rather than a practical or utilitarian purpose. Apparently, the evidence showed that Infantino trademarked and tested the item as a toy. Infantino included the Funny Farmer in its "Toys and Activity Play" catalog and the description emphasized the accompanying "plush pals." Finally, the packaging acknowledges the use as a shopping cart cover but emphasizes the play aspects of the mat. There are obvious utilitarian features to the product including the leg holes and waste strap. Nevertheless, the court found it to also be designed for amusement. Accordingly, the court found the Funny Farmer to also be prima facie classifiable as a toy in Heading 9505.

The Court of International Trade found, however, that both headings each refer only to part of the materials in the product. Under General Rule of Interpretation 3(b), the good is to be classified as if it were the single material or component that gives the item its essential character. Essential character can be determined by examining the nature of the material including its bulk, weight, quantity and value as well as its role in the use of the good.

The Court noted that the detachable toys are, well, toys. The mat, were it not fitted to cover a shopping cart, would also be a toy. The packaging and pricing are also consistent with the item being a toy. Consequently, the Court held it to be classifiable in 9503.00.00.

A note on the links. When I saw the title of the case, my nerd heart skipped a beat. Carmine Infantino is a legend among comic artists who did great work at both DC and Marvel in the silver age of superhero comics. He is credited with reviving Flash, de-cluttering Batman (including the reviled Bat-Mite), creating the Barbara Gordon version of Batgirl and co-creating Detective Chimp and Elongated Man. I hoped this case would be similar to Toy Biz, which involved the classification of action figures from the Marvel universe. No such luck. Nevertheless, the links are a minor tribute to Mr. Infantino's work.

Available at Amazon.

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