                                       Slip Op. 04-104


                   UNITED STATES COURT OF INTERNATIONAL TRADE

_____________________________________
                                             :
MATTEL, INC. and FISHER PRICE, INC.
                                             :
                         Plaintiffs,
                                             :
              v.                                  Court No. 98-12-03231
                                             :
UNITED STATES,
                                             :
                     Defendant.
_____________________________________:


[Plaintiffs’ motion for summary judgment granted; Defendant’s cross-motion for summary judgment
denied, and action dismissed.]

                                                                      Decided: August 19, 2004

        Stein Shostak Shostak & O’Hara, P.C. (Marjorie M. Shostak and Heather C. Litman), for
Plaintiffs.

        Peter D. Keisler, Assistant Attorney General; John J. Mahon, Acting Attorney in Charge,
International Trade Field Office, Commercial Litigation Branch, Civil Division, U.S. Department
of Justice (Mikki Graves Walser); Sheryl A. French, Office of the Assistant Chief Counsel,
International Trade Litigation, U.S. Customs Service, Of Counsel; for Defendant United States.


                                          OPINION


RIDGWAY, Judge:

       In this action, plaintiffs Mattel, Inc. and its wholly-owned division, Fisher-Price, Inc.,

(collectively “Mattel”) challenge the decision of the U.S. Customs Service (“Customs”)1 denying


       1
        Effective March 1, 2003, the United States Customs Service was renamed the Bureau of
Customs and Border Protection of the United States Department of Homeland Security. See
Reorganization Plan Modification for the Department of Homeland Security, H.R. Doc. 108-32 at
4 (2003).
Court No. 98-12-03231                                                                        Page 2



Mattel’s protests concerning the tariff classification of certain children’s merchandise imported by

Mattel and marketed in this country as “Pop-Up Wackaroos.”2

       The Government maintains that Customs properly classified the “Pop-Up Wackaroos” as toys

– specifically, “[o]ther toys . . . [i]ncorporating an electric motor,” under subheading 9503.80.20 of

the Harmonized Tariff Schedule of the United States (“HTSUS”) (1994),3 assessing duties at the rate

of 6.8 % ad valorem. See generally Memorandum in Support of Defendant’s Opposition to

Plaintiffs’ Motion for Summary Judgment and in Support of Defendant’s Cross-Motion for

Summary Judgment (“Def.’s Brief”); Defendant’s Reply to ‘Plaintiff’s Combined Opposition to

Defendant’s Cross-Motion for Summary Judgment and Reply to Defendant’s Opposition to

Plaintiffs’ Motion for Summary Judgment’ (“Def.’s Reply Brief”).

       Mattel contends that Pop-Up Wackaroos are instead properly classifiable as “[g]ame

machine[s],” under subheading 9504.90.40, and thus are dutiable at the significantly lower rate of

3.9 %. See generally Memorandum of Points and Authorities in Support of Plaintiffs’ Motion for

Summary Judgment (“Pls.’ Brief”); Plaintiffs’ Combined Opposition to Defendant’s Cross-Motion




       2
        Two Customs rulings on Pop-Up Wackaroos are included in the record. Customs
Headquarters Decision on Further Review of Protest (March 7, 1996) (“Customs Headquarters
Decision Memo”) appears in the record as Plaintiffs’ Exhibit 11 and as Defendant’s Attachment A.
The agency’s ruling on Mattel’s protest – HQ 958869 (May 13, 1998) (“Customs’ Ruling Letter”)
– appears in the record as Plaintiffs’ Exhibit 2 and as Defendant’s Exhibit A.
       3
           All references are to the 1994 version of the HTSUS.
Court No. 98-12-03231                                                                        Page 3



for Summary Judgment and Reply to Defendant’s Opposition to Plaintiffs’ Motion for Summary

Judgment (“Pls.’ Reply Brief”).4

       Cross-motions for summary judgment are pending. Jurisdiction lies under 28 U.S.C. §

1581(a) (1994). Customs’ classification decisions are subject to de novo review pursuant to 28

U.S.C. § 2640 (1994). For the reasons discussed below, “Pop-Up Wackaroos” are properly

classified as “[g]ame machines” under subheading 9504.90.40 of the HTSUS.

       Mattel’s motion for summary judgment is therefore granted, and the Government’s cross-

motion is denied.


                                          I. Background

        The box in which it is sold describes the merchandise here at issue – “Pop-Up Wackaroos”

– as “[a] fast-paced preschool game” designed for children “[a]ges 3-7.” See Def.’s. Exh. C (sample

of merchandise at issue).5 In essence, it is a scaled-down, children’s version of “Whac-A-Mole,” a

venerable and beloved game common in arcades and casinos throughout the country.




       4
         Heading 9503 covers, in relevant part, “[o]ther toys; reduced-size (“scale”) models and
similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof.”
Subheading 9503.80.20 covers “[o]ther toys and models incorporating a motor and parts and
accessories thereof; Toys (except models): Incorporating an electronic motor.”

       Heading 9504 covers, in relevant part, “articles for funfair, table or parlour games, including
pintables, billiards, special tables for casino games and automatic bowling alley equipment.”
Subheading 9504.90.40 covers “[o]ther: Game machines, other than coin–or token-operated; parts
and accessories thereof.”
       5
       Except as otherwise expressly indicated, the facts in this section are drawn largely from an
examination of the sample merchandise. See Def.’s Exh. C (sample merchandise).
Court No. 98-12-03231                                                                            Page 4



       Pop-Up Wackaroos consists of two pieces – a small, somewhat irregularly-shaped base unit

made of hard plastic, and a two-headed, accordion-style mallet made of soft plastic. When the base

unit is turned on, a timing device is activated, whooping, “wacky arcade sounds” begin to play, and

six small comical “critter heads” randomly pop up – one at a time – out of six holes (or cavities) in

the base unit, before quickly disappearing back into their respective holes.6

       For young children playing Pop-Up Wackaroos, the object is to “beat the clock” by using the

mallet to quickly strike each critter as it pokes its head up (before it disappears back into its hole)

– and to successfully hit all six critters before time runs out and the unit automatically shuts off

(after roughly one minute or so).7

       If a child succeeds in hitting a critter head while it is poking out of its hole, that critter makes

a warbling, chirp-y sound, then does not pop up again. Any remaining critter heads (i.e., critter

heads that have not been successfully struck while out of their holes) continue to randomly pop up




       6
        To start “Pop-Up Wackaroos,” a child pushes the large red button in the lower left hand
corner of the base unit. A battery-powered motor then causes the six “critter heads” – one at a time
– to randomly pop out of, and quickly disappear back into, their respective holes.

        As parents are warned in the sheet of “Instructions” included with the merchandise, “There
is no ‘OFF’ switch on this product.” See Def.’s Exh. C (sample merchandise). Compare Customs’
Ruling Letter (stating, incorrectly, that the red button on the merchandise is both an “on” and an
“off” switch).
       7
        As explained in the Instructions packaged with the merchandise, “[t]he Pop/Up Wackaroos
game will automatically shut off after approximately one minute. ‘Winning’ the game will also
automatically shut off the game.” See Def.’s Exh. C (sample merchandise). The sample
merchandise provided as Defendant’s Exhibit C runs for approximately one minute and forty-five
seconds before automatically shutting off (unless a player successfully hits all six critter heads, in
which case it shuts off sooner).
Court No. 98-12-03231                                                                            Page 5



– one at a time – and then disappear again, until “time is up” (or until all six heads have been

successfully struck, whichever happens first).8 According to the back of the product box:

       Kids love keeping these cute critters from popping up. Turn it on, watch as they
       come out of their holes, then try to bop them back into place. Players win when all
       the critters stay down.

See Def.’s Exh. C (sample merchandise).

       If a child hits all six critter heads within the allotted time (i.e., before the unit automatically

shuts off), the child “wins,” and a distinctive, melodic “cavalry-charge”-type fanfare plays, heralding

the child’s success. On the other hand, if time expires before the child succeeds in striking all six

“critter heads” while they are poking out of their holes, the unit silently shuts off. See Def.’s Exh.

C (sample merchandise).


                                      II. Standard of Review

       Under USCIT Rule 56, summary judgment is appropriate where “there is no genuine issue

as to any material fact and . . . the moving party is entitled to . . . judgment as a matter of law.”

USCIT R. 56(c).

       Customs classification decisions are reviewed through a two-step analysis – first, construing

the relevant tariff headings, a question of law; and second, determining under which of those

headings the merchandise at issue is properly classified, a question of fact. Bausch & Lomb, Inc.



       8
          A hit is successful only if the critter is struck while it is poking out of its hole; and the
critters randomly pop out of their holes. However, there is otherwise no particular “order” in which
the critters must be struck. Compare Customs’ Ruling Letter (stating – in error – that “[i]f a child
hits all the ‘heads’ with the mallet in the correct order . . . the unit makes bells and buzzer sounds”
(emphasis added)).
Court No. 98-12-03231                                                                          Page 6



v. United States, 148 F.3d 1363, 1365 (Fed. Cir. 1998) (citing Universal Elecs., Inc. v. United States,

112 F.3d 488, 491 (Fed. Cir. 1997)).

        Summary judgment is thus appropriate where, as here “there is no genuine dispute as to the

underlying factual issue of what exactly the merchandise is.” Id. at 1365. A factual dispute is

genuine only “if the evidence is such that the [the trier of fact] could return a verdict for the non-

moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[T]here is no issue for

trial unless there is sufficient evidence favoring the nonmoving party . . . . If the evidence is merely

colorable, or is not significantly probative, summary judgment may be granted.” Id. at 249-50

(emphasis added) (citations omitted). Thus, at the summary judgment stage, the question to be

answered is “whether there is the need for a trial – whether, in other words, there are any genuine

factual issues that properly can be resolved only by a finder of fact because they may reasonably be

resolved in favor of either party.” Id. at 250.

        On review, Customs’ classification rulings are accorded a measure of deference proportional

to their power to persuade, in accordance with the principles set forth in Skidmore v. Swift & Co.,

323 U.S. 134 (1944). See United States v. Mead Corp., 533 U.S. 218, 234-35 (2001); Mead Corp.

v. United States, 283 F.3d 1342, 1346 (Fed. Cir. 2002).


                                             III. Analysis

        The classification of all merchandise is governed by the General Rules of Interpretation

(“GRIs”), which provide a framework for classification under the HTSUS, and are to be applied in

sequential order. See, e.g., North Am. Processing Co. v. United States, 236 F.3d 695, 698 (Fed. Cir.

2001); Orlando Food Corp. v. United States, 140 F.3d 1437, 1439 (Fed. Cir. 1998).
Court No. 98-12-03231                                                                         Page 7



        The GRIs relevant to this action are GRIs 1 and 3. Most goods are classified pursuant to

GRI 1, which provides that “classification shall be determined according to the terms of the headings

and any relevant section or chapter notes and, provided such section or notes do not otherwise

require, according to [GRIs 2 through 6].” GRI 2(a) and 2(b) – which have no bearing here –

generally deal, respectively, with the classification of articles that are “incomplete,” “unfinished,”

“unassembled,” or “disassembled,” and with the classification of “mixtures or combinations” of

materials or substances). GRI 3, in turn, governs the tariff treatment of goods that “are, prima facie,

classifiable under two or more headings.”

       Both Mattel and the Government contend that Pop-Up Wackaroos is classifiable pursuant

to GRI 1 – albeit with very different results. Mattel asserts that GRI 1 leads to classification as a

“game machine” under heading 9504, while the Government maintains that it leads to classification

as a “toy” under heading 9503. See, e.g., Pls.’ Brief at 6; Def.’s Brief at 22. Mattel argues, in the

alternative, that – even if Pop-Up Wackaroos is prima facie classifiable under both headings 9503

and 9504 – GRI 3 compels classification as a “game machine.” See, e.g., Pls.’ Brief at 4, 11-13; Pls.’

Reply Brief at 10-11.

       The parties’ arguments are considered in turn below.


                              A. GRI 1: The Terms of The Headings

       Classification under GRI 1 begins with “the terms of the headings and any relevant section

or chapter notes.” GRI 1.
Court No. 98-12-03231                                                                          Page 8



                            1. Heading 9504: The Definition of “Game”

       The Government explains that, because the term as used in heading 9504 is not defined in

the HTSUS, Customs has established criteria for determining whether an article is classifiable as a

“game,” “[b]ased upon the dictionary definition of the term . . . and the prior judicial construction

of that term.” Def.’s Brief at 13. According to the Government, to secure tariff treatment as a

“game,” an article must involve:

       (1) a competition or contest with the objective of winning;
       (2) play activity between two or more people or between one person and the game
          itself;
       (3) skill, chance, or endurance, or a combination of these elements; and
       (4) a method or system of scoring.

Def.’s Brief at 13; Def.’s Reply Brief at 5, 10. See also Customs Headquarters Decision Memo at

2.

       The Government maintains that Customs correctly found that Pop-Up Wackaroos “does not

satisfy criteria (1), (3), and (4)” – that is, that the merchandise does not involve “a competition or

contest with the objective of winning”; that it does not involve “skill, chance, or endurance, or a

combination of these elements”; and that it does not involve “a method or system of scoring.”9

Def.’s Brief at 14. Thus, according to the Government, Customs properly concluded that Pop-Up

Wackaroos cannot be classified as a “game” under heading 9504.




       9
          Interestingly, the Government at one point appears to retreat from its claims as to two of the
three criteria. In its Reply Brief, the Government asserts that Pop-Up Wackaroos is not classifiable
as a “game” because it “does not involve a physical or mental competition” (criterion (1) ). But it
makes no reference whatsoever to “skill, chance, or endurance” or “a method or system of scoring”
(criteria (3) and (4) ). See Def.’s Reply Brief at 1.
Court No. 98-12-03231                                                                         Page 9



       To the contrary, as discussed more fully below, nothing in the relevant case law requires a

“game” to have “a method or system of scoring” (at least not in the sense that Customs and the

Government here use that concept). Nor do dictionary definitions reflect any such requirement.

Moreover, such a requirement is belied by everyday logic and common sense, as well as Customs’

past practice. In short, there is no basis for criterion (4) above – at least not in the sense in which

Customs applied it in this instance.

       In addition, contrary to the Government’s assertions, Pop-Up Wackaroos both involves “a

competition or contest with the objective of winning” (criterion (1)), and requires “skill, chance, or

endurance, or a combination of these elements” on the part of players (criterion (3)). The

Government’s objections to classification under heading 9504 thus have no merit.


                               a. “A Method or System of Scoring”

       The Government represents that controlling judicial precedent on the definition of a “game”

requires a system of scoring.10 See Def.’s Brief at 6 (asserting that Mego defined “games” as

including “a method or system of scoring”), 13 (stating that, “according to the CCPA, an activity is

a ‘game’ if it results in a ‘score’”), 15-16 (suggesting that Montgomery Ward requires a scoring

system). In fact, the Government simply misreads both Mego and Montgomery Ward (which Mego

cites). See generally Mego Corp. v. United States, 62 CCPA 14, 505 F.2d 1288 (1971) (Mego);

Montgomery Ward & Co. v. United States, 66 Cust. Ct. 233, 238 (1971) (Montgomery Ward).




       10
         Both Mattel and the Government agree that Mego is the controlling authority on the
definition of “game.” See Pls.’ Brief at 6; Def.’s Brief at 11-12.
Court No. 98-12-03231                                                                            Page 10



        While both Mego and Montgomery Ward stand for the proposition that an element of

“contest” must be present, neither case expressly or implicitly requires a “system of scoring” as an

essential element of a “game.” Rather, in both cases, the existence of a system of scoring was treated

as evidence that the play activity at issue constituted a “contest.”

        Mego involved the classification of a miniature pinball machine under the Tariff Schedule

of the United States (“TSUS”), the predecessor to the HTSUS. There, as here, the key question was

whether the merchandise at issue was a “game.” The Mego court endorsed the parties’ reliance on

the common meaning of “game,” as reflected in dictionary definitions of the term. Thus, Mego held

that a game “must be competitive or involve a contest, and must possess an element of skill, chance,

or endurance.” Mego, 62 CCPA at 18. Conspicuously absent from that definition is any reference

to a “system of scoring.” Indeed, the Mego court referred to “the objective . . . [of] get[ting] the balls

into the highest numbered slots to make the highest score” – its sole reference to a “system of

scoring” – only to establish the presence of “the element of contest,” which is required of a “game.”

Mego, 62 CCPA at 18 (emphasis added).

        As support for its holding that the objective of reaching a higher score satisfies the element

of “contest” required for classification as a “game,” the Mego court quoted Montgomery Ward. Like

Mego and the case here at bar, Montgomery Ward concerned whether certain merchandise – there,

the “Mechanical Mother Hen Target Game” – was a “game” (or a “game machine”) for tariff

purposes.

        Significantly, the legal issue presented in Montgomery Ward (and, in particular, the subject

of the excerpt quoted in Mego) was not whether “scoring” is a required element of a “game,” but –
Court No. 98-12-03231                                                                        Page 11



rather – whether the mandatory element of a “contest” necessarily required competition between at

least two people. 66 Cust. Ct. at 239. Montgomery Ward held that the “contest” required for

classification as a game “may be between two or more persons, or between one person and the game

itself,” citing pinball machines, slot machines, and darts as “games” that may be played by one

person alone. Id. The court reasoned:

       The point is that these activities [i.e., pinball, slot machines, and darts] are games
       since they result in a ‘score’ measuring one’s skill or luck or combination thereof
       against a given set of rules.

Id. (emphasis added).

       The court’s point in Mongtomery Ward was that – because they result in a “score” – pinball,

slot machines, and darts satisfy the required element of a “contest,” even when they do not involve

two or more competitors. The court notably did not hold that, in addition to involving a “contest,”

a game must also involve “scoring.”

       In sum, read carefully and in context, it is clear that – in both Montgomery Ward and Mego

– the court viewed “scoring” not as an independent element required for classification as a “game,”

but, rather, as an indicator (or as evidence) of the existence of the required element of a “contest.”

The controlling case law simply does not require that a game, for tariff classification purposes,

involve “scoring.”

       Nor do dictionaries define “game” to require “a method or system of scoring.” Certainly the

dictionary definitions of the term in Mego and Montgomery Ward did not mention scoring. See

Mego, 62 CCPA at 18 (noting that the parties there “cite various dictionary definitions which

indicate that a ‘game’ must be competitive or involve a contest, and must possess an element of skill,
Court No. 98-12-03231                                                                           Page 12



chance, or endurance”); Montgomery Ward, 66 Cust. Ct. at 236 (quoting at least seven definitions

of “game” from three different dictionaries).

        Moreover, none of the dictionary definitions cited by the Government in the case at bar

identify “scoring” as an essential element of a “game.” Indeed, of the three different dictionaries and

the nine or more definitions of the term quoted in the Government’s briefs, only one of those

definitions even mentions a variant of the word “score.” See Def.’s Brief at 11 (quoting Webster’s

Third New International Dictionary (Unabridged 1961), Webster’s New World Dictionary (Third

College Edition 1988), and Merriam Webster’s Collegiate Dictionary (Tenth Edition 1996); Def.’s

Reply Brief at 3 (reiterating the same quotes). And that reference actually does not use “scoring”

in the sense in which the Government is using the term here; rather, it comes from a definition of the

word “game” meaning – literally – “[t]hat which is gained as the result a game.”11

        The definitions of “game” in Mego and Montgomery Ward, as well as various dictionaries

– none of which require a “system of scoring” – are also consistent with everyday logic and common

sense. Examples of “games” lacking “scoring” (i.e., a graduated system of measuring performance)

abound.12 The company picnic favorite, “tug-of-war,” in which two groups of people on either end


        11
           The Government’s use of ellipses is misleading. As quoted in the Government’s briefs, it
appears that the phrase “The number of points necessary to be scored in order to win . . .” is part and
parcel of the definition numbered “3 a (1)”: “a physical or mental competition conducted according
to rules in which the participants play in direct opposition to each other, each side striving to win and
to keep the other side from doing so.” But, in truth, the reference to “scored” is actually part of
another distinct, separately numbered definition, concerning a different, and arguably irrelevant,
meaning of “game.”
        12
        It is worth noting that the concept of “scoring” does not necessarily inherently connote a
graduated, multi-level or numerical measuring system (as Customs and the Government apparently
contend). Thus, it is not apparent why a binary “win/lose” system cannot constitute a system of
Court No. 98-12-03231                                                                         Page 13



of a rope try to pull each other across a dividing line, involves only a binary construct – “winning

and losing” – without any graduated method of measuring the performance of the winners and

losers.13 The perennial barroom classic, “arm wrestling,” similarly lacks any inherent method of

distinguishing one winner or loser from another.

       Further, this observation is not limited to games involving physical contests. The electronic

game “Simon,” emblematic of the late 1970s, consisted of a round plastic disc with four, large

different colored buttons. Players tried to memorize and then repeat increasingly long sequences of

musical tones after they were emitted from the disc and displayed by the illumination of the different

colored buttons. Notably, Simon did not include any method of measuring a player’s performance

or “score.” Nevertheless, Customs clearly considered it to be a “game” for tariff purposes. In a




scoring. Indeed, Montgomery Ward defined “score” simply as the “measuring [of] one’s skill or
luck or combination thereof against a given set of rules.” Montgomery Ward, 66 Cust. Ct. at 238.
A “measuring” system based on 0 and 1 is not qualitatively different from a measuring system based
on 0, 1, 2, and 3; it is merely more crude.

        It is, in any event, unclear precisely what Customs means by a “system of scoring.” While
the agency sometimes appears to require a scoring method capable of measuring gradations of
performance (i.e., beyond simply determining winning or losing) (see, e.g., Aff. of Customs National
Import Specialist ¶ 36 (asserting that Pop-Up-Wackaroos lacks a “timing or scoring mechanism [that
would permit players to] know if they were improving”)), Customs has – in a number of instances
– classified as “games” articles that did not provide for a system of scoring beyond a method of
determining a winner and loser. See, e.g., HQ 801795 (Dec. 21, 1991), HQ 037583 (Feb. 13, 1975)
(electric racing car sets without lap timers or lap counters classified as games); HQ 038561 (Mar.
3, 1975) (mechanical karate action figures providing only for win/lose competition classified as
games); HQ 959558 (Sept. 14, 1998) (box of chewing gum with plastic maze dispenser, and win/lose
objective, classified as a game).
       13
         Obviously, a graduated method of scoring may be imposed in any “win/lose” game by, for
example, playing for “two-out-of-three.” The point, however, is that graduated scoring is not intrinsic
to the game itself.
Court No. 98-12-03231                                                                          Page 14



ruling made under the TSUS, Customs classified a part used in the manufacture of “Pocket Simon”

(a miniaturized version of Simon) under the tariff provision for “game machines and parts thereof.”

See HQ 800291 (Apr. 7, 1981). Thus, even Customs’ own prior practice demonstrates that tariff

classification as a game does not turn on the presence of a “system of scoring” (at least not in the

sense in which the Government uses that term here).14


       14
          There are other similar examples of prior Customs practice that cannot be reconciled with
the agency’s position on “scoring” here. In fact, on other occasions, Customs has classified items
lacking graduated systems of scoring as “games” under heading 9504 – the very HTSUS provision
here at issue.

        For example, “Wolverine Maze Candy” was a small box filled with pieces of chewing gum,
with a plastic maze/dispensing portal on the top. In order to extract a piece of gum, one had to
navigate the gum through the maze to the opening. Classifying the item as a game, Customs
described it as a “contest or competition against oneself with a win/loose [sic] objective.” HQ
959558 (Sept. 14, 1998). The chewing gum dispenser clearly did not have any system of measuring
a player’s performance (indeed, query whether one could even lose the “game”); yet Customs found
that the chewing gum dispenser satisfied the same four specific criteria that the Government and
Customs relied on here. See also n.12, supra (listing other such examples).

       Customs’ handling of “scoring” vis-a-vis classification as a “game” has been inconsistent in
other ways as well. For example, some Customs rulings concerning potential classification as a
“game” list scoring as an essential criterion, while others do not. Compare HQ 076287 (July 31,
1985), HQ 05279 (Feb. 13, 1978), with HQ 0375853 (Feb. 13, 1975), HQ 038561 (Mar. 3, 1975),
HQ 033067 (Aug. 18, 1976), HQ 800741(June 26, 1981), HQ 061105 (Aug. 10, 1979), HQ
057781(Apr. 1, 1978), HQ 049067 (Apr. 21, 1977), HQ 087976 (Dec. 13, 1990).

        And even where Customs’ analysis points to scoring, sometimes it is treated not as an
independent criterion for classification as a “game,” but rather as evidence of the existence (or lack
thereof) of a “contest” or “competition.” See, e.g., HQ 033067 (Aug. 18, 1976) (method of
computing scores cited among “factors . . . sufficient . . . to conclude [that the article] was designed
and constructed to be used in competition”); HQ 061015 (Aug. 10, 1979) (finding that the object of
the game in question is to score the highest number of points and therefore “is designed for use as
a competition”); HQ 052868 (Aug. 19, 1977) (system of scoring listed among factors supporting
conclusion that “competitiveness . . . is clearly lacking”).
Court No. 98-12-03231                                                                         Page 15




       In sum, Customs has identified no basis in law or logic for requiring “a method or system of

scoring” as an integral element for tariff classification as a “game.” Accordingly, its determination

that Pop-Up Wackaroos lacks such a system gives no pause.


                  b. “A Competition or Contest with the Objective of Winning”

       The Government further contends that Customs properly determined that Pop-Up Wackaroos

does not involve “a competition or contest with the objective of winning” – criterion (1) of Customs’

standard formulation for a “game.” See generally Def.’s Brief at 16-17; Def.’s Reply Brief at 11-12.

However, an examination of the sample merchandise refutes Customs’ determination. See Def.’s

Exh. C (sample merchandise).

        Pop-Up Wackaroos plainly constitutes “a competition or contest” between the child playing

with the merchandise and the item itself. The objective of play is for the child to “beat” the

merchandise by successfully striking all six critter heads at the appropriate time (i.e., as each

individual head randomly pops up, but before it quickly disappears back into its hole) and within the

allotted time (i.e., before the timing device automatically shuts off the merchandise, silencing the

background arcade sounds that always accompany play, and forcing the child to cease play without

enjoying the distinctive, melodic fanfare that heralds a “win”). In short, Pop-Up Wackaroos




        In fact, Customs has explicitly stated that, for some merchandise, a system of scoring is
among a list of elements or features not all of which need be present in order to satisfy the criteria
for classification as a “game.” See, e.g., HQ 087976 (Dec. 13, 1990) (listing lap counters, lap timers,
and finish lines among elements providing evidence of competition in race car sets, but emphasizing
that not all elements are required).
Court No. 98-12-03231                                                                        Page 16




effectively pits the child who is playing with the merchandise in a “race against time.”15 See

generally Pls.’ Brief at 9; Pls.’ Reply Brief at 8-9.

       The Government attempts to dismiss the timing device in Pop-Up Wackaroos as a mere

“battery-saving feature.” Def.’s Brief at 17. But that argument is unavailing. As an initial matter,

the Government proffers no evidence (affidavit testimony or otherwise) in support of its claim,

which appears only in its legal briefs.16 In contrast, the uncontested testimony of a Fisher-Price

game designer confirms that the “timing element” of Pop-Up Wackaroos creates “a challenge by the

machine against the player.” Pls.’ Exh. 5 (“Aff. of Fisher-Price Designer”) ¶ 12 (emphasis added).

       More fundamentally, it completely strains credulity to claim that a timing device that shuts

off a product after only one minute is simply an energy-saving feature – particularly where, as here,

the timing device shuts off the product after just a minute or so without regard to whether or not the

product is still in active use. The timing element here thus is no mere “battery-saving device.”




       15
          The Government asserts that “a child between the ages 3-7 is not capable of measuring time
to ‘play against’ the machine.” See Defendant’s Response to Plaintiffs’ Statement of Material Facts
¶ 8. However, the Government fails to back up that statement with any affidavit testimony or other
evidence to substantiate its claim. Such bald allegations do not suffice to create a genuine issue of
material fact on a motion for summary judgment. See, e.g., Sweats Fashions Inc. v. Pannill Knitting
Co., 833 F.2d 1560, 1562 (Fed. Cir. 1987) (in opposing a motion for summary judgment, a non-
movant may not rest upon mere denials, “but must proffer countering evidence sufficient to create
a genuine factual dispute.”)
       16
         Again, as noted above, unsupported allegations generally do not suffice to create a genuine
issue of material fact on a motion for summary judgment. See, e.g., Sweats Fashions Inc., 833 F.2d
at 1562 (in opposing summary judgment, a non-movant may not rest upon mere denials, “but must
proffer countering evidence sufficient to create a genuine factual dispute.”)
Court No. 98-12-03231                                                                           Page 17




Rather, it serves to inject the element of “competition or contest” into Pop-Up Wackaroos.17 Indeed,

even the Government’s expert – a National Import Specialist – implicitly recognizes that the time

pressure inherent in Pop-Up Wackaroos effectively “challenges” players, attesting that a player

conceivably might “get good at [playing], and always beat the one-minute.” Def.’s Exh. B (“Aff.

of Customs National Import Specialist”) ¶ 22.)

        Just as an examination of the sample merchandise at issue establishes that Pop-Up

Wackaroos involves the requisite element of “competition or contest,” so too such an examination

establishes the presence of “the objective of winning” that is mandatory for tariff classification as

a “game.” As explained above, the objective of playing with Pop-Up Wackaroos is to “beat” the

product by striking all six critter heads at the appropriate time (i.e., as each individual head

randomly pops up, but before it quickly disappears back into its hole) and within the allotted time

(i.e., before the timing device automatically shuts off the merchandise, silencing the background

“wacky arcade sounds” that always accompany play, and forcing the child to cease play without

enjoying the distinctive, melodic fanfare that plays to trumpet success). Thus, a player “wins” at

Pop-Up Wackaroos by successfully striking (1) all six critter heads, (2) at the appropriate time, and

(3) within the allotted time.




        17
          It is also telling that the timing element is emphasized in the retail packaging of Pop-Up
Wackaroos. Specifically, five of the six sides of the box in which the merchandise is sold tout it as
“A fast-paced preschool game!” See Def. Exh. C (sample merchandise) (emphasis added). While
it is true that the manner in which an article is merchandised is not solely determinative of its
classification, it is also true that the importer’s consistent description of the merchandise as a “game”
is a relevant factor. See, e.g., R. Dakin & Co. v. United States, 14 CIT 797, 800-01 (1990) (citing
cases).
Court No. 98-12-03231                                                                            Page 18




        The Government inexplicably asserts that “[t]here is no indication of winning or losing in

playing with Pop-Up Wackaroos; there is no indication that the Pop-Up Wackaroos has won and the

child has lost or vice versa.” Def.’s Brief at 16-17. See also Def.’s Reply Brief at 8 (“Pop-Up

Wackaroos has no method of determining whether the child has won or, conversely, that the machine

has won”). The Government further states that “[a] child merely continues playing until bells and

buzzers sound.” Def.’s Reply Brief at 8. The facts are quite to the contrary.

        If a player “wins” by successfully striking all six critter heads at the appropriate time and

within the allotted time, that “win” is announced by a distinctive, melodic fanfare. Similarly, if Pop-

Up Wackaroos “wins” (i.e., if a player “loses” by failing to strike all six critter heads at the

appropriate time and before the allotted time expires), the distinctive fanfare does not play. Instead,

the automatic timing device simply shuts off the merchandise, silencing the background arcade

sounds that always accompany play, and forcing the child to cease play without enjoying the melodic

fanfare associated with victory.

        In short, contrary to the Government’s claims, after a maximum of approximately one minute

of play with Pop-Up Wackaroos, a “winner” is declared – and either the distinctive, triumphant

fanfare plays, or it does not. If the fanfare of victory is heard, the player has won; if it is not heard,

the player has lost. In any event, it is difficult to imagine – in the Government’s phraseology – a

simpler or clearer “indication that the Pop-Up Wackaroos has won and the child has lost or vice

versa.”18 Moreover, there is no truth whatsoever to the Government’s claim that “[a] child merely


        18
          The objective of “winning” is reinforced by the retail packaging of Pop-Up Wackaroos, as
well as the Instructions included with the merchandise. For example, the back of the box in which
the merchandise is sold states: “Players win when all the critters stay down.” See Def.’s Exh. C
Court No. 98-12-03231                                                                             Page 19




continues playing until bells and buzzers sound.” Def.’s Reply Brief at 8. The “bells and buzzers”

to which the Government refers are actually instead the distinctive, melodic fanfare of victory; and

it sounds only if the child “wins” as described above. Otherwise, Pop-Up Wackaroos automatically

shuts itself off after approximately one minute. Contrary to the Government’s assertions, it simply

is not possible for a child to continue playing indefinitely “until bells and buzzers sound.” The very

design of the product precludes it.

        Also wide of the mark is the Government’s claim that the distinctive fanfare of victory

indicates nothing more than the fact “that no more heads will pop-up to be hit, i.e., the task

(pounding down all heads) is complete, and the play activity has ended.” See Def.’s Brief at 16.

Critter heads stop popping up and the play activity ends after a maximum of approximately one

minute in any event, whether a player “wins” or not. But the victorious fanfare is heard only if the

critter heads stop popping up because a player has “won.” The fanfare thus signifies more than

simply the fact that no more heads will pop up; they also signify the reason that no more heads will

pop up – i.e., it signifies that the player has “won” by successfully striking all six critter heads at the

appropriate time, and before the allotted time expired.19


(sample merchandise) (emphasis added). Similarly, the Instructions state: “Players win when all the
critters have been pounded to stay down” and “‘Winning’ the game will . . . automatically shut off
the game.” See Def.’s Exh. C (sample merchandise) (emphasis added). Although an importer’s own
representations as to its merchandise are not determinative, they are a factor to be considered for
classification purposes. See, e.g., R. Dakin & Co. v. United States, 14 CIT 797, 800-01 (1990)
(citing cases).
        19
         The Government further asserts that the sounds of the distinctive, melodic fanfare of victory
“at most, represent a reward” for pounding down all of the heads within the allotted time. Def.’s
Brief at 16. Particularly in this context, however, it is difficult to discern how a “reward” is
inconsistent with the notion of “winning” a game. Indeed, in classifying the “Wolverine Maze
Court No. 98-12-03231                                                                           Page 20




        In short, the Government’s arguments on this point fail to carry the day. Pop-Up Wackaroos

plainly involves “a competition or contest with the objective of winning,” and thus satisfies criterion

(1) for tariff classification as a “game.”


                                  c. “Skill, Chance, or Endurance”

        As with criteria (1) and (4), discussed above, the Government also seeks to defend Customs’

determination that Pop-Up Wackaroos does not satisfy criterion (3) – i.e., that it does not involve

“skill, chance, or endurance, or a combination of these elements.” But, apart from a handful of bald

assertions that it is not met, the Government’s papers have little to say about the criterion. See Def.’s

Brief at 13 (asserting that “Pop-Up Wackaroos . . . does not . . . measur[e] one’s skill or luck or

combination thereof”), 14 (alleging that “Pop-Up Wackaroos does not . . . measur[e] one’s skill or

luck, or skill and luck”).

        It is, in any event, beyond cavil that skill (and/or luck) is involved in Pop-Up Wackaroos.

Although the Government contends that there is no requirement “that the player must hit all of the

[pop-up critter] heads within any specific time frame” and that “there is no real method of measuring

one’s skill or luck” in playing with Pop-Up Wackaroos (see Def.’s Reply Brief at 7), those

statements simply cannot be squared with the facts.

        As discussed elsewhere, an examination of the sample merchandise reveals that, to “win” at

Pop-Up Wackaroos (and thus to trigger the playing of the distinctive, melodic fanfare of victory),



Candy” game, it was precisely a reward (there, chewing gum) for successfully completing a task
(there, navigating a maze) that Customs considered sufficient to satisfy “game” criterion (2) – “a
competition or contest with the objective of winning.” See n.14, supra.
Court No. 98-12-03231                                                                            Page 21




a child must strike all six critter heads at the appropriate time (i.e., as each individual head randomly

pops up, but before it quickly disappears back into its hole) and before the allotted time expires (i.e.,

before the timing device automatically shuts off the merchandise, after roughly one minute of play).

See Def.’s Exh. C (sample merchandise). Thus, contrary to the Government’s claims, “winning” at

Pop-Up Wackaroos is expressly defined in terms of successfully striking all six heads within a

“specific time frame.” Similarly, a player’s “skill or luck” is measured in terms of time – whether

the player successfully strikes all six critter heads at the appropriate time and within the allotted time

expires.

        Indeed, in speculating that a child conceivably “might get good at [Pop-Up Wackaroos], and

always beat the one-minute,” the Government’s own expert – the National Import Specialist –

implicitly admits that the timing element of Pop-Up Wackaroos increases the challenge inherent in

trying to strike critter heads in motion, necessarily requiring a certain degree of skill on the part of

a player. See Aff. of Customs National Import Specialist ¶ 22 (emphasis added).20 The point here


        20
          The Government’s papers include other similar concessions as well. For instance, the
Government seeks (albeit in a slightly different context) to analogize Pop-Up Wackaroos to another
Fisher-Price product, the “Tap ’n Turn Bench” – which the Government characterizes as a “classic
work bench pegs and hammer toy.” See Def.’s Brief at 27. But the Government’s attempted analogy
fails for a variety of reasons, some of which are relevant here.

         Thus – for purposes of this discussion of “Skill, Chance, or Endurance” – it is sufficiently
telling that the Government concedes that the element of motion inherent in Pop-Up Wackaroos
(with the critter heads popping quickly up and down) means that Wackaroos involves “a more
difficult challenge or skill” than the classic work bench (where the pegs to be struck are stationary).
See Def.’s Brief at 27 (emphasis added). But, obviously, that “challenge or skill” is even greater
when (as in Pop-Up Wackaroos) it is combined with the element of time pressure – an element that
the Government consistently minimizes or ignores. See Def.’s Brief at 27 (discussing the “challenge
or skill” inherent in the element of motion, with no reference to the element of time pressure).
Court No. 98-12-03231                                                                          Page 22




is that the time pressure element represents a challenge, compounding the challenge of striking

objects in motion – both of which must, in tandem, be overcome by a player’s skill at quickly and

accurately hitting the critter heads with the mallet.

        Here, again, Customs simply got it wrong. Pop-Up Wackaroos plainly involves skill (and/or

luck), and thus satisfies criterion (3) for tariff classification as a “game.”


                            d. “Rules Either Expressed or Self-Evident”

        Over and above the standard four-criteria formula articulated by Customs and the

Government and discussed above – i.e., an article involving (1) a competition or contest with the

objective of winning, (2) play activity between two or more people or between one person and the

game itself, (3) skill, chance, or endurance, or a combination of these elements, and (4) a method or

system of scoring – the Government here hints at various points in its papers that a “game” also must

be “played according to rules either expressed or self-evident.” See, e.g., Def.’s Brief at 6; Def.’s

Reply Brief at 1. See also Customs Headquarters Decision Memo at 2. However, the Government

tends to discuss “rules” only in the context of one or another of its four specific criteria. See, e.g.,

Def.’s Brief at 13 (referring to “a given set of rules” as a means of determining a “score” (i.e.,

criterion 4) that measures a player’s “skill or luck or combination thereof” (i.e., criterion 3)), 14

(referring to “a given set of rules” against which “one’s skill or luck” is measured using a “scoring

system”).

        It is thus entirely unclear what role, if any, Customs and the Government believe “rules” play

in determining whether an article is a “game” for tariff purposes. But, in any event, the matter is of
Court No. 98-12-03231                                                                          Page 23




little moment in this case. Although the Government asserts at one point that there is “no implied

or expressed rule that [someone playing Pop-Up Wackaroos] must hit all of the heads within any

specific time frame,” and that “there is no real method of measuring one’s skill or luck against any

given set of rules when playing” (see Def.’s Reply Brief at 7), those are overstatements, to say the

least.

         Thus, while the Government claims that “Pop-Up Wackaroos has only one simple instruction

[or “rule”], to hit the heads,” the Government also concedes – as it must – that “rules” need not be

in writing, and that they may be very “simple.” See Def.’s Brief at 16 & n.3. It is, moreover, clear

– as detailed in section III.A.1.b, above – that, contrary to the Government’s assertion, each

individual critter head not only must be hit, but must be hit at the appropriate time (i.e., as it as it

randomly pops up, and before it disappears back into its hole) and before the allotted time expires.

         Further, here – as with the miniature pinball machine in Mego – no instructions or rules for

play are really necessary, because both the objective of play and the operation of the merchandise

are relatively “obvious.” See Mego, 62 CCPA at 19. In any case, Pop-Up Wackaroos are, in fact,

packaged with a sheet of simple written Instructions (or “rules”) that state: “Turn [the base unit] on,

watch as [the cute critters] come out of their holes, then try to pop them back into place. Players win

when all the critters have been pounded to stay down.” See Def.’s Exh. C (sample merchandise).

         The bottom line is that, because Pop-Up Wackaroos is relatively simple, it has relatively

simple rules. But rules, indeed, it has – both “expressed” and “self-evident.” Thus, to the extent that

tariff classification as a “game” requires such rules, Pop-Up Wackaroos satisfies that requirement.
Court No. 98-12-03231                                                                        Page 24




       Indeed, as detailed above, Pop-Up Wackaroos satisfies all of the valid established criteria for

tariff classification as a “game.” It involves (1) “a competition or contest with the objective of

winning”; (2) “play activity” between a child and “the game itself”; and (3) skill (and/or luck). Pop-

Up Wackaroos is thus prima facie classifiable as a “game” under heading 9504.


                           2. Heading 9503: The Definition of “Toy”

       The determination that Pop-Up Wackaroos are prima facie classifiable under heading 9504

does not conclude the analysis. If merchandise is prima facie classifiable under two or more

headings, GRI 3 applies. Here, the Government argues forcefully for Customs’ classification of

Pop-Up Wackaroos as “toys,” under heading 9503. See, e.g., Def.’s Brief at 22-28. If, indeed, the

merchandise is prima facie classifiable under both headings 9503 and 9504, then resort must be had

to GRI 3.

       Heading 9503 of the HTSUS covers “[o]ther toys; reduced-size (‘scale’) models and similar

recreational models, working or not; puzzles of all kinds; and accessories thereof.” Defining “toy”

as “an article principally used for [] amusement, diversion, or play,” the Government reasons that

heading 9503 is a “principal use” provision. See Def.’s Brief at 22 (emphasis added). As such, the

Government asserts that heading 9503 is covered by Additional U.S. Rule of Interpretation (“ARI”)

1(a). Def.’s Brief at 22-23.

       ARI 1(a) addresses the classification of merchandise under a principal use provision,

specifying that classification “is to be determined in accordance with the use in the United States .

. . of goods of that class or kind to which the imported goods belong.” ARI 1(a), HTSUS. Thus, the
Court No. 98-12-03231                                                                         Page 25




Government argues, the classification of Pop-Up Wackaroos is controlled by the “use of the ‘class

or kind’ of merchandise” to which Pop-Up Wackaroos belongs, explaining that goods are of the

same “class or kind” if they are commercially fungible with one another. Def.’s Brief at 23 (quoting

Primal Lite, Inc. v. United States, 182 F.3d 1362 (Fed. Cir. 1999)).

       The Government asserts that Pop-Up Wackaroos is commercially fungible with “toys”

“inasmuch as it moves in the same channels of trade as and [is] advertised, marketed and displayed

with other toys.”21 Def.’s Brief at 24-25. To support that claim, the Government points to various

wholesale catalogs produced by Fisher-Price. The Government emphasizes that Pop-Up Wackaroos

is not listed or featured with the merchandise designated as “games” in the tables of contents and

indices of the catalogs, but rather with the merchandise designated as “preschool.”               The

Government’s argument, in a nutshell, is that Fisher-Price itself “classif[ied]” Pop-Up Wackaroos

alongside “toys” in its “advertising and marketing materials,” and that Pop-Up Wackaroos therefore

“moves in the same channels of trade as and [is] advertised, marketed and displayed with other toys.”

Def.’s Brief at 25-26.22


       21
          The factors to be considered in determining whether merchandise falls within a particular
“class or kind” include: (1) the general physical characteristics of the merchandise; (2) the channels
of trade in which the merchandise moves; (3) the environment of the sale of the merchandise (i.e.,
accompanying accessories and the manner in which the merchandise is advertised and displayed);
(4) the use of the merchandise in the same manner as merchandise which defines the class; (5)
economic practicality of so using the import; (6) the recognition in the trade of this use; and (7) the
expectations of the ultimate purchaser. See Def.’s Brief at 24 (citing United States v. Carborundum
Co., 63 CCPA 98, 536 F.2d 373 (1976) ).
       22
         Only select pages of catalogs are included in the Government’s exhibits. It is thus
impossible to fully assess the overall organization of the catalogs or to definitively determine
whether there are other “games” featured alongside the “preschool” merchandise. In any event, it
is worth noting that, for example, in the 1994 catalog, Pop-Up Wackaroos is featured along with
Court No. 98-12-03231                                                                           Page 26




        The Government further contends that Pop-Up Wackaroos is “akin to the classic work bench

hammer and pegs activity”of Fisher-Price’s “Tap ’n Turn Bench,” and is thus also a toy. Def.’s Brief

at 26. The Government asserts, in essence, that the whacking involved in playing Pop-Up

Wackaroos and the hammering used on the Tap ’n Turn Bench “require similar skills,” and that Pop-

Up Wackaroos is “merely a more sophisticated hammer and toy peg activity.” See Def.’s Brief at

27-28. But see n.20, supra (distinguishing Pop-Up Wackaroos from the Tap ’n Turn Bench).23

        In the end, it is unnecessary to reach the merits of the Government’s arguments on this issue.

For the reasons outlined below, even assuming that Pop-Up Wackaroos is, in fact, prima facie

classifiable as a “toy,” the merchandise is nevertheless ultimately classifiable as a “game machine”

under heading 9504.




“Pop ’n Pinball,” which the catalog describes as an “electronic pinball game.” See Def.’s Exh. D
(emphasis added). Similarly, the layout, graphics, and text arguably link Pop-Up Wackaroos and
Pop ’n Pinball together, and contrast them with the other merchandise on the page. In short, it is not
at all clear – from the few pages in the record – what the significance is of the organization of the
catalogs.

        Even more to the point, it is far from clear that the tables of contents, indices, and layouts of
the catalogs reflect separate channels of trade, separate marketing, and separate displays. Indeed,
the catalogs may be read to suggest just the opposite. Toys and games are marketed together, in one
catalog, with whimsical and apparently fluid product categories like “Little People,” “Super Toys,”
and “Great Adventures.” See Def.’s Exh. D. Further, the catalogs themselves reveal little about
channels of trade generally, and nothing about retail trade.
        23
         The Government’s logic on this point is somewhat less than transparent. It is not at all clear
why similarities between hammering and whacking should have any bearing on whether Pop-Up
Wackaroos is classifiable under heading 9503 as a “toy.” Indeed, the whacking involved in playing
Pop-Up Wackaroos is virtually identical to the whacking required to play the arcade game Whac-a-
Mole. Yet the Government here concedes that the latter is a “game,” while insisting that the former
is not. See Def.’s Brief at 17.
Court No. 98-12-03231                                                                         Page 27




            B. GRI 3: Goods Prima Facie Classifiable Under Two or More Headings

       As discussed in section II.A.1 above, Pop-Up Wackaroos are prima facie classifiable as

“game machines” under heading 9504. But, if the merchandise is also prima facie classifiable as

“toys” under heading 9503, then its classification is governed by GRI 3. In any event, as Mattel

observes, the application of GRI 3 results in classification as “game machines” under heading 9504.

See Pls.’ Brief at 11-13; Pls.’ Reply Brief at 10-11.24

       GRI 3(a) provides that “[t]he heading which provides the most specific description shall be

preferred to headings providing a more general description.” Under this so-called “rule of relative

specificity,” merchandise is classified under the heading with the “requirements that are more

difficult to satisfy and that describe the article with the greatest degree of accuracy and certainty.”

Orlando Food Corp. v. United States, 140 F.3d 1437, 1441 (Fed. Cir. 1998). Here, there can be no

doubt that heading 9504 (which covers “[a]rticles for arcade, table, or parlor games . . .”) is more

specific than heading 9503 (which refers broadly to “[o]ther toys . . .”). Classification under GRI

3(a) would thus lead conclusively to heading 9504.

       Moreover, even were headings 9503 and 9504 to be deemed equally specific (such that GRI

3(a) could not control), classification under GRI 3(c) would lead to the same result.25 When

merchandise cannot be classified pursuant to the other principles of GRI 3, GRI 3(c) dictates that

it is to be classified under “the heading which occurs last in numerical order among those which


       24
         Because the Government staked its case in this matter entirely on GRI 1, its briefs here
include no substantive GRI 3 analysis. See Def.’s Brief at 22 n.4; Def.’s Reply Brief at 9-10.
       25
          GRI 3(b) concerns the classification of “[m]ixtures, composite goods . . ., and goods put
up in sets for retail sale,” and thus has no relevance here.
Court No. 98-12-03231                                                                          Page 28




equally merit consideration.” (Emphasis added.) Whatever else may remain unsettled in the field

of customs law, this much is clear: Heading 9503 precedes heading 9504.

        In sum, all roads lead to the classification of Pop-Up Wackaroos as “game machines” under

heading 9504. To be sure, the merchandise is prima facie classifiable under that heading. And even

if it also prima facie classifiable as “toys” under heading 9503, heading 9503 is “trumped” by

heading 9504 under both GRI 3(a) and GRI 3(c).


                   C. Customs’ Classification Ruling and Skidmore Deference

        As a final matter, the Government contends that Customs’ interpretation of headings 9503

and 9504 in its ruling letter in this case should be accorded Skidmore deference. See Def.’s Brief

at 28-35; Def.’s Reply Brief at 10-13. Customs’ ruling letters are entitled to deference proportional

to their persuasiveness. United States v. Mead Corp., 533 U.S. 218, 235 (2001) (citing Skidmore

v. Swift & Co., 323 U.S. 134, 140 (1944)). In evaluating the persuasiveness of a Customs

classification ruling, factors to be considered include “the writers’ thoroughness, logic, and

expertness, [the ruling’s] fit with prior interpretations, and any other sources of weight.” Id. at 235.

Applying those factors to this case, Customs’ classification ruling is entitled to no deference.

        Customs’ ruling letter was not adopted pursuant to a deliberative notice and comment

rulemaking process. While that fact is by no means determinative, it is nevertheless an important

consideration in assessing the first Skidmore factor – the thoroughness of the ruling’s reasoning. See

Structural Indus., Inc. v. United States, 356 F. 3d 1366, 1370 (Fed. Cir. 2004) (citing Rubies
Court No. 98-12-03231                                                                           Page 29



Costume Co., v. United States, 337 F.3d 1350, 1356 (Fed. Cir. 2003)); Russ Berrie & Co., v. United

States, 27 CIT ____, ____, 281 F. Supp. 2d 1351, 1353 (2003).

        Customs fares even worse on the second Skidmore factor – the logic of its ruling. As

discussed at length above, the agency erred in determining that “a method or system of scoring” is

an essential element of a game. The agency premised its logic and reasoning on an incorrect reading

of the relevant case law, a distortion (or an ignorance) of dictionary definitions, and a disregard for

the common meaning of the tariff term “game.” Cf. Filmtec Co., v. United States, 27 CIT ___, ___,

293 F. Supp. 2d 1364, 1370 (2003) (according no deference where Customs relied on an incorrect

reading of the Explanatory Notes and the tariff heading at issue).

        The logic of Customs’ ruling was also undermined by its reliance on previous rulings

involving quite different merchandise. Customs based its analysis of whether Pop-Up-Wackaroos

is a “game” or a “toy” on previous classification rulings involving a set of plastic paddles and two

air shuttlecocks (used in a tossing game), flying frisbee discs, and collectible paperboard drink tops

(see Customs’ Ruling Letter at 3 - 4) – articles that are very different from Pop-Up-Wackaroos (and,

indeed, are not even machines). Determining whether an article is a “game” or a “toy” is a very fact-

intensive inquiry, turning largely on the specific characteristics of the article in question. Thus,

“prior rulings with respect to similar but non-identical items are . . . of little value in assessing the

correctness of the classification of a similar but non-identical item.” Structural Indus., Inc. v. United

States, 356 F.3d 1366, 1371 (Fed. Cir. 2004).

        The third Skidmore factor – the agency’s body of expertise – is the sole factor weighing in

favor of deference here.      It is axiomatic that Customs has “specialized experience” in the
Court No. 98-12-03231                                                                          Page 30



classification of goods. Mead, 533 U.S. at 534 (quotations omitted). However, that element weighs

in favor of deference to every classification ruling. Accordingly, it cannot be determinative. Here,

it is clearly outweighed by other considerations.

       For reasons discussed in section III.A.1.a above, the fourth Skidmore factor – the ruling’s

consistency with prior interpretations – also counsels against deference in this case. As that section

explains, Customs has not treated a “method or system of scoring” as a “hard and fast” requirement

for classification as a “game.” Indeed, as noted there, it is unclear what the agency means by a

“system of scoring.”

       A final consideration weighing against deference in this case are the numerous factual errors

that pockmark Customs’ ruling. For example, Customs erroneously described Pop-Up-Wackaroos

as having five cavities with critter-heads. (There are, in fact, six.) Customs also stated that the

“large red button in the bottom left corner of the unit turns the motor ‘on’ and ‘off.’” In fact, as the

Instructions that accompany the merchandise clearly explain, the red button only turns the game

“on.” In addition, Customs indicated that a player must hit all of the critter heads “in the correct

order.” In fact, the order in which the heads are hit in no way affects the outcome of the game.

       At first blush, some of those factual errors may seem relatively minor. But it cannot be

assumed that all are irrelevant to Customs’ classification analysis – particularly since the question

of whether Pop-Up-Wackaroos is a game turns on a detailed factual analysis of the product’s

features. And, in any event, such errors belie any suggestion that the agency’s determination reflects

an in-depth familiarity with the merchandise. Indeed, the errors in Customs’ ruling here are

particularly disconcerting because they did not appear in the Headquarters Decision Memo, which
Court No. 98-12-03231                                                                 Page 31



predated this ruling. Compare Customs Headquarters Decision Memo with Customs’ Ruling Letter.

In any event, errors such as these undermine the credibility of the agency’s decision-making.

       Taking into consideration all of the above factors, the balance tips decisively against

Skidmore deference here.


                                          IV. Conclusion

       For all the reasons set forth above, Pop-Up Wackaroos is properly classified as a “game

machine” under subheading 9504.90.40 of the HTSUS. Mattel’s motion for summary judgment is

therefore granted, and the Government’s cross-motion is denied.

       Judgment will enter accordingly.


                                                 /s/ Delissa A. Ridgway
                                                            Judge

Decided: August 19, 2004
         New York, New York
