Words Matter in HS Classification

When inexplicably up at 5:00 AM with no prospect of going back to sleep seems to be as good a time as any to catch up on blog posts.

Aero Rubber Company v. United States has already had some coverage on the blog. The first time we discussed this case, it was as a Customs and Border Protection ruling. The second time was in connection with a Court of International Trade decision on the admissibility of evidence. Now, the CIT has issued a decision on the merits.

The merchandise at issue is silicone bands with writing on them. These are larger than wrist size and are used to bind together or secure various items including brochures, video game accessories, aircraft parts, and restaurant menus. Customs classified the bands in Heading 3926 as articles of plastic. The plaintiff argues that the words on the bands require that they be classified in Heading 4911 as other printed matter.

Key to this decision is Section VII, Note 2, which states that:

Except for the goods of heading 3918 or 3919, plastics, rubber and articles thereof, printed with motifs, characters or pictorial representations, which are not merely incidental to the primary use of the goods, fall in chapter 49.

Following this rule, as required by General Rule of Interpretation 1, means that if the printing on the bands is more than merely incidental to the primary use of the band as a whole, then the band is to be classified in Chapter 49.

According to the Court, "incidental" in this context means, among other things, something of lesser importance, something that is subordinate in relation to something else, and secondary in nature. The flip side of that is that according to the Explanatory Notes to the Harmonized System, Chapter 49 "covers all printed matter of which the essential nature and use is determined by the fact of its being printed with motifs, characters or pictorial representations.”  Therefore, only printing that is non-essential in nature should be excluded from Chapter 49.

Boiling this down, the Court found that printing that imparts the essence of a product, is necessary, or basic to the item moves merchandise into Chapter 49. Printing that is incidental or subordinate does not. To make that distinction clear, the Court provided a bright line:

Where printing has a communicative purpose, the printing comprises part of the essence of the product.  Indeed, where a product’s printing has a communicative purpose, one can reasonably surmise that the product as a whole is intended to carry out that communicative purpose.  Logically, a communicative printed component is meant to transfer information.  The product is the medium for the message, regardless of what other purpose it might have.  Whatever the other functions of the product, the printed component becomes part of the essential nature of the product.
With that cleared up, the only thing left for the Court was to go through the various printed bands and determine whether the printing on each was communicative or incidental (meaning, in my words, "decorative"). It turns out that company logos, slogans, instructions to "Remove Before Installation," shirt sizes, and web addresses are all communicating information to the reader. Thus, they are all communicative printing that is not merely incidental to the silicone bands' ability to bind or secure whatever it surrounds.

On the other hand, a set of numbers without additional context is merely decorative and does not communicate anything. In this case, the band was ordered to bind together brochures for marketing a high-end apartment building. The numbers were the street address but that would not be obvious to the reader without the brochures enclosed by the bands. The Court considered that to be decorative.

Personally, I might have gone the other way. My question is whether the use of the number as the marketing hook for the building is equivalent to a logo or name. The Washington Post recently ran a story on the use of personal names for apartment buildings. One example is Liz, not The Liz, in Washington. Is Liz as a logo or company name particularly more communicative than, say 303 when used as the catchy name for a building? That is a close call.


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