                          Slip Op. 07 - 136

            UNITED STATES COURT OF INTERNATIONAL TRADE

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DECKERS CORPORATION,                  :

                          Plaintiff, :

               v.                       :   Court No. 02-00674

THE UNITED STATES,                    :

                          Defendant. :

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                              Opinion


[Upon trial as to classification of Teva®
 sandals, judgment for the defendant.]


                                            Decided: September 5, 2007


     Rode & Qualey (Patrick D. Gill, Michael S. O'Rourke and
William J. Maloney) 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 (James A. Curley and Marcella Powell); and Office of
Assistant Chief Counsel, U.S. Customs and Border Protection
(Michael W. Heydrich), of counsel, for the defendant.


          AQUILINO, Senior Judge:    As reported in slip opinion

05-159, 29 CIT ___, 414 F.Supp.2d 1252 (2005), filed herein,

familiarity with which is presumed, this court could not and

therefore did not grant defendant's motion for summary judgment as

to its classification of three models of Teva® sandals that entered
Court No. 02-00674                                              Page 2


the United States through the port of Los Angeles, California.      As

stated, the genuine issue of material fact that required trial was

the opinion set forth in Customs Ruling HQ 963395 (April 2, 2002)1

that the openness2 of those models leaves them unsuitable for

activities implied by the exemplars of subheading 6404.11 of the

Harmonized Tariff Schedule of the United States ("HTSUS"), namely,

"tennis shoes, basketball shoes, gym shoes, training shoes and the

like".      See 29 CIT at ___, 414 F.Supp.2d at 1262.   Thereupon trial

commenced in California and continued and concluded in New York.


                                     I

               The evidence adduced and now on the record clearly

attenuates that agency opinion but does not extend so far as to

recommend that either the Pretty Rugged Sport Sandal, plaintiff's

exhibit 1, the Terradactyl Sport Sandal, plaintiff's exhibit 2, or

the Aquadactyl Sport Sandal, plaintiff's exhibit 3, be donned for

tennis, basketball or gym, or even training, at least on or in the

kind of confines those first three statutory adjectives imply.

Rather, the plaintiff has proven beyond any reasonable doubt their

design and development for strenuous human outdoor activity, often



       1
         Defendant's Exhibit E, pages 3-4, is quoted at 29 CIT at
      and 414 F.Supp.2d at 1260.
       2
            See generally Plaintiff's U.S. Patent No. 4,793,075, p. 2,
FIG        2, 29 CIT at    , 414 F.Supp.2d at 1256.
Court No. 02-00674                                                   Page 3


near or in bodies of water, including "adventure racing"3, beach

and   trail    running,    "canyoneering"4,   hiking,   jogging,   mountain

biking,     power-   and    sail-boating,     sport   fishing5,    swimming,

triathlon, and "white water" kayaking and rafting.


              Volume 10, page 408 of The New Encyclopaedia Britannica

(1986) dates the type of footwear by humans known as sandals to

2000 BC (in Egypt), but almost 4,000 years passed before one Mark



      3
       California trial transcript ("CalTr."), p. 235. Adventure
racing is "through all different natural mediums" [id. at 238],

      very much like a triathlon with a team; but the sports
      they go through . . . where they're climbing and then
      they're all of a sudden rafting and then . . . running.
      . . . So this type of shoe . . . is something where . . .
      the athlete is capable of staying in one piece of
      footwear, going in and out of the water, running,
      climbing, and rafting all . . . in one fell swoop.

Id. at 236-37.
      4
          Ibid. at 99.
      5
          According to unrefuted testimony at trial, there are

      many, many types of fishing, and they've all become
      competitive now[,] from catfish fishing in the
      Mississippi to . . . large sailfish fishing off the coast
      of Hawaii and Costa Rica; and these shoes are used for
      the whole gamut . . .. Fly fishermen use them . . .
      instead of waders in creeks that are accommodating
      temperaturewise. They are used on boats all over the
      world for competitive fishing.


Ibid. at 239.     See also New York trial transcript ("NYTr.") 1, pp.
9-13, 27-29.
Court No. 02-00674                                                  Page 4


Thatcher    designed     and   successfully   patented   the   "universal"

strapping system affixed to each of the Teva®s at bar and described

as follows:


     A sandal with an elongated sole configured to the profile
     of a human footprint with a toe end and a heel end,
     employs a toe strap connected at two anchor points to
     grip the full part of the user's foot and a heel strap
     connected at two anchor points to grip the ankle of the
     user's foot, with a lateral strap connected between the
     toe strap and the heel strap, which is located on the
     outside sole parallel to its surface so it is operable to
     stabilize the other straps and to maintain essentially
     constant tensions in the individual straps as the sole
     flexes with the toe and heel straps being infinitely
     adjustable so the wearer can cinch the sandal to its foot
     by adjusting said straps in a manner that will not be
     dislodged during rigorous activity.6


Plaintiff's patent (and the trial record into which it has been

read) summarizes the invention as a

     sports sandal, including an elongated sole, configured to
     the profile of the human foot having a toe end and a heel
     end, a tether-strap system connected to the top of said
     sole for retaining a human foot, the tether-strap system
     having a toe-strap system extending transversally from
     the sole adjacent to the toe end and a heel-strap system
     connected to the sole at the heel end for encircling the
     user's ankle, and a lateral strap connected between said
     toe-strap system and said heel-strap system with the
     lateral strap located parallel to and along the outer
     edge of the sole so flexing of said sole will not
     appreciably change the tension in said tether-strap
     system.7



     6
         CalTr. at 38-39, quoting from plaintiff's patent.
     7
         Id. at 39-40.
Court No. 02-00674                                                       Page 5


                                         A

           Plaintiff’s merchandise was classified by Customs under

HTSUS subheading 6404.19.35.           Its protest thereof, and subsequent

pleadings based thereon herein, have taken the position that "the

most specific description" of its goods within the meaning of

General Rule of Interpretation 3(a) is:

     6404.11      Sports footwear; tennis shoes, basketball shoes, gym
                  shoes, training shoes and the like:

                                   *     *     *
                        Other:

                                   *     *     *

     6404.11.80                  Valued over $6.50 but not over
                                 $12/pair . . . . . . . . . . .


           As recited in slip opinion 05-159, the definition of

"sports footwear" found in Subheading Note 1 to HTSUS chapter 64

precludes classification of plaintiff’s sandals as such.                 See 29

CIT at ___, 414 F.Supp.2d at 1258; Pretrial Order, Schedule C,

para. 5.   Whereupon the plaintiff continues to press its view that

the term

     "tennis shoes, basketball shoes, gym shoes, training
     shoes and the like" is "defined by Additional U.S. Note
     2 to Chapter 64 as all ‘athletic footwear’ subject to
     certain exceptions which the parties agree do not apply
     to the Teva® sport sandals".[8] . . .




     8
       29 CIT at ___, 414 F.Supp.2d at 1257, quoting plaintiff’s
brief in opposition to defendant’s motion for summary judgment, pp.
2-3 (emphasis in original).
Court No. 02-00674                                                      Page 6


       Congress eliminated the need to make subjective
       determinations as to whether shoes other than the named
       exemplars are "like" the named exemplars. It laid this
       issue to rest by putting the named exemplars and any
       shoes like them in one defining basket: "athletic
       footwear."    Hence, there is no need to make the
       subjective and contentious determinations of what is
       "like" as suggested by defendant since Congress has
       defined the entire term including the exemplars and the
       term "and the like" as meaning athletic footwear.9


Upon       initial    analysis,   the   court   considered   this   attempt   to

extrapolate from that additional note 2's language10 congressional

intent to substitute, for purposes of interpreting subheading

6404.11.80, "athletic footwear" for the list of exemplars and their

like to be "tenuous."         29 CIT at ___, 414 F.Supp.2d at 1257.


               Nonetheless, trial ensued at which the plaintiff bore

its burden of proof with regard to its factual averments, e.g.:


       2.      The imported merchandise is sold as athletic foot-
               wear.

       3.      Merchandise in issue is used for sporting and
               athletic purposes including, but not limited to,
               whitewater rafting.

       4.      The imported merchandise is sold under the
               registered trademark Teva® and is patented in the
               United States Patent Office (Patent #4,793,075),
               described as "SPORT SANDAL FOR ACTIVE WEAR."

       5.      Teva® sport sandals are conducive to fast footwork
               associated with athletic activities.



       9
            Id.
       10
            See id.
Court No. 02-00674                                          Page 7


     6.    The imported footwear is the type commonly referred
           to by the footwear industry and consumers as sport
           sandals or athletic sandals.

     7.    Sport sandals are recognized as athletic footwear
           by the footwear industry.

29 CIT at ___, 414 F.Supp.2d at 1255.   Also:

     11.   The imported merchandise is used in athletic
           activities where, prior to the invention of the
           sports sandal, wearers had no option but to use
           closed upper styled tennis shoes, basketball shoes,
           gym shoes, training shoes and other types of
           athletic footwear.

     12.   For certain athletic activities, the imported
           merchandise is preferred over any of the closed
           upper styled exemplars.

     13.   The openness of the uppers of the imported
           merchandise does not create significant drawbacks
           to athletic use, but rather results in an improved,
           more usable athletic shoe.

     14.   The imported footwear does not allow the wearer’s
           foot to move or slide in a manner inconsistent with
           athletic use.

     15.   The design of the imported merchandise allows for
           quick and easy removal of any foreign matter that
           may be introduced while participating in athletic
           activities.

     16.   The imported merchandise is favored by users over
           the exemplars because the time needed to remove
           foreign objects or to tighten or adjust Teva®
           sports sandals is significantly less than the same
           activities performed on closed upper styled tennis
           shoes, basketball shoes, gym shoes or training
           shoes.

     17.   The performance and comfort of the imported
           merchandise in athletic use under conditions, e.g.,
           weather and terrain, involving moisture is superior
           to that of closed upper styled tennis shoes,
           basketball shoes, gym shoes and training shoes.
Court No. 02-00674                                            Page 8


     18.   The imported merchandise has features that are also
           found in closed upper styled tennis shoes,
           basketball shoes, gym shoes and training shoes.


Pretrial Order, Schedule C-1.


                                 B

           Given the evidence now on the record, plaintiff’s able

counsel have filed a reply to defendant’s post-trial brief.   Among

other things, they request the court to revisit their "tenuous"

conclusion, supra, to wit:


     . . . To [the] extent that . . . link is tenuous, we
     believe the record in this case closes the loop.
     Plaintiff’s proof that the imported articles are athletic
     footwear is tantamount to proving that the imported
     articles are ejusdem generis with the named exemplars in
     that their primary purpose is for use in athletic games
     or for athletic purposes. Without Note 2, there can be
     no question that the issues in this case would have to be
     resolved solely by reference to the rule of . . . ejusdem
     generis. However, Note 2 must be given some meaning in
     its attempt to define the term athletic footwear. If the
     sole criterion to resolve this issue was resort to the
     rule of ejusdem generis, Congress would not have had to
     state that the term "covers athletic footwear." Nor can
     it be said that Note 2 was inserted solely for the
     purpose of modifying the principal use requirement of GRI
     Additional U.S. Rule of Interpretation 1(a) to the HTSUS
     or the elimination of "sports footwear" from the
     provision.   If that were the case, Note 2 could have
     simply said that "heading 6404.11.80, HTSUS, excludes
     ‘sports footwear’ including footwear otherwise provided
     therein, whether or not principally used for athletic
     games or purposes." Instead, Congress deliberately used
     the entire term, "tennis shoes, basketball shoes, gym
     shoes, training shoes and the like" and stated that it
     covers athletic footwear. To ignore the defining proviso
     that the term covers athletic footwear would be to assume
     that Congress did a vain and unnecessary thing in using
Court No. 02-00674                                                  Page 9


      the term athletic footwear to define the entire term in
      subheading 6404.11.80, HTSUS, including the term "and the
      like." Even if Congress could have drafted Note 2 more
      clearly, "the courts must not impute to a legislative
      body the doing of a useless and vain thing unless the
      written words will not permit of a construction which
      will give them a different effect." Fensterer & Voss
      (Inc.) v. United States, 13 Ct.Cust.Appls 105, T.D. 39734
      (1924).


Plaintiff’s Reply to Defendant’s Post Trial Brief, pp. 14-15.


            Counsel add that, in a case of statutory interpretation,

the meaning of terms is never completely free of doubt.          Id. at 15.

While this certainly can be true, in this particular action there

is and can be no doubt that plaintiff’s goods are "sandals", as

that form of human footwear has been understood for millennia.

Indeed, counsel do not and have not referred to plaintiff’s

merchandise otherwise.      On the other hand, the form of footwear

specified in that part of the HTSUS subheading, which the plaintiff

prefers, is "shoe"11.   Again, there is and can be little doubt that

that term does not cover the Teva®s at issue.             Compare, e.g.,

Defendant’s Exhibit B-1, -2, -3, -4 and NYTr. 2, pp. 13-23, with

Plaintiff’s Exhibits 1, 2, 3 and Defendant’s Exhibit N.          Moreover,

if   plaintiff’s   patent   4,793,075,   Exhibit   4   herein,   genuinely




       11
          Definitions of the two forms are found in defendant’s
exhibit D (Rossi, The Complete Footwear Dictionary, pp. 117, 122
(1994)).
Court No. 02-00674                                                        Page 10


satisfies 35 U.S.C. §10312, its nonobvious subject matter post-dates

(Dec. 27, 1988) iteration of HTSUS subheading 6404.11 in USITC Pub.

2030, p. 64-14 (March 25, 1988).             While it may well be, as this

matter has discovered, that forms of human athletic activity have

engendered more-propitious types of footwear, the law governing

their classification has yet to follow suit.              That it could (or

even should) is, of course, beyond the authority of this court.


                                        II

             This   court’s   jurisdiction      extends   only   to     deciding

whether plaintiff’s goods have been lawfully classified upon entry

by Customs.     In hereby concluding that they have been, the court

will    enter   final   judgment   to    that   effect    on   behalf    of   the

defendant.

Decided:    New York, New York
            September 5, 2007



                                             /s/ Thomas J. Aquilino, Jr.
                                                    Senior Judge




       12
       Cf. KSR Int’l Co. v. Teleflex Inc., 550 U.S. ___, 127 S.Ct.
1727 (2007).
                           J U D G M E N T

            UNITED STATES COURT OF INTERNATIONAL TRADE

              Thomas J. Aquilino, Jr., Senior Judge
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DECKERS CORPORATION,                    :

                              Plaintiff, :

                v.                       :    Court No. 02-00674

THE UNITED STATES,                      :

                              Defendant. :

- - - - - - - - - - - - - - - - - - -x


           This test case within the meaning of USCIT Rule 84(b)

having been duly submitted for decision; and the court, after due

deliberation, having rendered decisions herein;     Now therefore, in

conformity with said decisions, it is


           ORDERED, ADJUDGED and DECREED that the decision of the

United States Customs Service to classify the merchandise at issue

under HTSUS subheading 6404.19.35 (1998) be, and it hereby is,

affirmed; and it is further


           ORDERED, ADJUDGED and DECREED that this test case be, and

it hereby is, dismissed.

Dated:   New York, New York
         September 5, 2007


                                        /s/ Thomas J. Aquilino, Jr.
                                               Senior Judge
