Infantino, LLC v. United States

Slip Op. 14-
UNITED STATES COURT OF INTERNATIONAL TRADE
INFANTINO, LLC,
Plaintiff,
Before: Richard W. Goldberg, Senior Judge
v.
Court No. 11-00497
UNITED STATES,
Defendant.
OPINION
[Plaintiff’s motion for summary judgment is granted; defendant’s cross-motion for summary
judgment is denied.]
Dated: %FDFNCFS



Mandy A. Edwards and S. Richard Shostak, Stein Shostak Shostak Pollack & O’Hara,
LLP, of Los Angeles, CA, for plaintiff.
Beverly A. Farrell, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington, DC, for defendant. With her on the brief were Stuart F.
Delery, Assistant Attorney General, and Amy M. Rubin, Acting Assistant Director, International
Trade Field Office. Of counsel on the brief was Sheryl A. French, Attorney, Office of the
Assistant Chief Counsel, International Trade Litigation, U.S. Customs and Border Protection, of
New York, NY.
Goldberg, Senior Judge: At issue is the proper classification of merchandise sold under
the name Shop & Play® Funny Farmer (“Funny Farmer” or “merchandise”)1 and imported by
Plaintiff Infantino, LLC (“Infantino”). Infantino and the United States (the “Government”) have
cross-moved for summary judgment. The Government argues that U.S. Customs and Border
Protection (“Customs” or “CBP”) correctly classified the merchandise under U.S. Harmonized
Tariff Schedule (“HTSUS”) subheading 9404.90.20. Infantino claims that the merchandise is
1
The parties refer to the merchandise as the “Funny Farmer,” though Infantino’s catalogue refers to it as
the “Funny Farm.” See Def.’s Opp’n to Pl.’s Mot. for Summ. J. & Cross-Mot. for Summ. J. at Ex. B at 35, ECF No.
45. The court assumes that the parties have correctly identified the name of the product at issue and refers to the
product as “Funny Farmer” throughout this opinion.
Court No. 11-00497 Page 2
properly classifiable under HTSUS subheading 9503.00.00. Merchandise under HTSUS
subheading 9503.00.00 enters duty free, while merchandise under HTSUS 9404.90.20 carries a
six percent ad valorem duty. The court has jurisdiction pursuant to 28 U.S.C. § 1581(a) (2012).
As set forth below, the court grants Infantino’s motion for summary judgment and denies the
Government’s cross-motion for summary judgment.
BACKGROUND
The Funny Farmer is sold under the Shop & Play® brand as a “2-in-1 play mat” specially
designed for use both as a normal play mat and inside of a shopping cart. See Pl.’s Mot. for
Summ. J. (“Pl.’s Br.”) at Ex. 1, ECF No. 39; Def.’s Opp’n to Pl.’s Mot. for Summ. J. & Cross-
Mot. for Summ. J. (“Def.’s Br.”) at Ex. E at 2, ECF No. 45. It measures approximately nineteen
to twenty inches wide and forty-five inches long and is stuffed with a uniform, light polyester-
fiber batting. See Pl.’s Br. at Decl. of Wendy McLean ¶ 4 & Ex. 1. One side of the Funny
Farmer is a solid blue color, while the activity side depicts a farm theme and contains brightly
colored graphics, five removable activity toys, and one sewn-in activity toy. Id. Some of the
merchandise’s features enable its shopping-cart use, such as a detachable waist belt, leg flaps, a
crescent-shaped detachable bolster pillow decorated like a pea pod, small pockets designed as a
“convenience add-on” for parents to store items, and Velcro that secures the mat to the shopping-
cart seat. Def.’s Br. at Ex. C (“Cosky Dep.”) at 49:8; see Pl.’s Br. at Decl. of Wendy McLean ¶¶
4–6 & Ex. 1. The packaging for the Funny Farmer advertises the Funny Farmer’s dual use as
both the “perfect mat for tummy time play” and an in-cart mat that “turns any shopping cart into
a clean, comfy activity center.” Pl.’s Br. at Ex. 1.
Court No. 11-00497 Page 3
Infantino imported the Funny Farmer merchandise in question on February 3, 2008 at the
Long Beach Seaport. Summons 1, ECF No. 1. The merchandise was assigned Entry Number
231-5466017-1 and entered under HTSUS subheading 9404.90.20. Id. at 2. That heading covers
[m]attress supports; articles of bedding and similar furnishing (for example,
mattresses, quilts, eiderdowns, cushions, pouffes and pillows) fitted with springs
or stuffed or internally fitted with any material or of cellular rubber or plastics,
whether or not covered.
CBP liquidated the entry without change on December 19, 2008. Def.’s Br. 2; Pl.’s Notice of
Errata 1, ECF No. 50. Infantino subsequently filed Protest Number 2704-09-101681, claiming
that the Funny Farmer is properly classified under HTSUS subheading 9503.00.0080, which
pertains to
[t]ricycles, scooters, pedal cards and similar wheeled toys; dolls’ carriages; dolls,
other toys; reduced-scale (“scale”) models and similar recreational models,
working or not; puzzles of all kinds; parts and accessories thereof.
See Compl. ¶¶ 3, 6, ECF No. 5; Pl.’s Br. 3. Customs denied that protest, apparently without
extensive analysis, on August 5, 2011. See Compl. ¶ 3. The propriety of Customs’ protest
denial is the subject of the instant action. Infantino claims that the denial is in error, reasserting
that the Funny Farmer must be classified under subheading 9503.00.00. The Government claims
that the protest was properly denied, because the original 9404.90.20 subheading was correct.
Although the protest denial in this case was executed summarily, Customs earlier issued a
more detailed ruling that classified identical or nearly identical merchandise imported by
Infantino. See Def.’s Br. at Ex. F (“HQ H031397”). The issue in HQ H031397 was the same:
whether the merchandise had been properly classified under HTSUS heading 9404 or should
have been classified, per Infantino’s protest, under 9503. Id. at 2. In order to decide whether
9503 was the proper heading, Customs analyzed whether the primary purpose of the merchandise
Court No. 11-00497 Page 4
was “to amuse or to provide a utilitarian/functional quality.” Id. at 3. To that end, Customs
considered several of the analytical factors set forth in United States v. Carborundum Co., 63
CCPA 98, 102, 536 F.2d 373, 377 (1976). Specifically, Customs considered “(1) the general
physical characteristics of the merchandise; (2) the expectation of the ultimate purchasers; (3) the
channels, class or kind of trade in which the merchandise moves; (4) the environment of the sale
. . . ; [and] (5) usage, if any, in the same manner as merchandise” principally designed for
amusement. HQ H031397 at 3. Customs ultimately determined that, though the Funny Farmer
“has some amusing features incorporated into the design, this is outweighed by the utilitarian
design and purpose of the article which is intended to provide for the safety and comfort of
infants while in a shopping cart.” Id. at 4. Thus, Customs denied Infantino’s protest and upheld
the Funny Farmer’s classification under heading 9404. Id. at 5.
STANDARD OF REVIEW
In the context of a protest denial, the court reviews CBP’s findings of fact and
conclusions of law de novo. See 28 U.S.C. §§ 2639(a)(1), 2640(a); Tyco Fire Prods. L.P. v.
United States, 37 CIT __, __, 918 F. Supp. 2d 1334, 1339 (2013). The court arrives at the proper
classification by first determining the meaning of the relevant tariff provisions (a question of
law) and then deciding under which of the properly construed tariff provisions the merchandise
at issue falls (a question of fact). See Bausch & Lomb, Inc. v. United States, 148 F.3d 1363,
1365–66 (Fed. Cir. 1998). Though the court accords “respect” to CBP’s classification rulings
“proportional to [their] ‘power to persuade,’” United States v. Mead Corp., 533 U.S. 218, 235
(2001) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)), the court has “an
independent responsibility to decide the legal issue of the proper meaning and scope of HTSUS
terms,” Warner-Lambert Co. v. United States, 407 F.3d 1207, 1209 (Fed. Cir. 2005).
Court No. 11-00497 Page 5
Summary judgment is appropriate if, viewing the evidence in a light most favorable to
the nonmoving party, “the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” USCIT R. 56(a); see also Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In a classification case, this means that
summary judgment is appropriate when “there is no genuine dispute as to the underlying factual
issue of exactly what the merchandise is.” Bausch & Lomb, 148 F.3d at 1365.
DISCUSSION
The court now considers Infantino’s and the Government’s claims and holds that the
Funny Farmer is properly classified as a toy under subheading 9503.00.00. The rationale for this
holding must be prefaced with a brief explanation of the import-classification process.
Import classifications are governed by the General Rules of Interpretation (“GRIs”) of the
HTSUS and any applicable Additional United States Rules of Interpretation. See Dependable
Packaging Solutions, Inc. v. United States, 757 F.3d 1374, 1377 (Fed. Cir. 2014). The GRIs are
applied in numerical order. Id. Accordingly, the court’s analysis begins with GRI 1, which
provides that “classification shall be determined according to the terms of the [HTSUS chapter]
headings and any relative section or chapter notes.” Id. at 1377–78.2 In evaluating whether
subject merchandise fits within a particular heading, the court generally construes HTSUS terms
“‘according to their common and commercial meanings, which are presumed to be the same.’”
Id. at 1378 (quoting Carl Zeiss, Inc. v. United States, 195 F.3d 1375, 1379 (Fed. Cir. 1999)). In
its analysis, the court may also consult the World Customs Organization’s “Explanatory Notes,”

2
The HTSUS is composed of a total of ninety-nine chapters, which are distributed among twenty-two
sections. Each chapter contains headings that are further divided into subheadings. “The headings contain ‘general
categories of merchandise,’ whereas ‘the subheadings provide a more particularized segregation of the goods within
each category.’” Deckers Outdoor Corp. v. United States, 714 F.3d 1363, 1366 (Fed. Cir. 2013) (quoting Orlando
Food Corp. v. United States, 140 F.3d 1437, 1439 (Fed. Cir. 1998)). In applying GRI 1, the subheadings are not to
be consulted until it is determined that the merchandise in question is classifiable under a particular heading.
Dependable Packaging, 757 F.3d at 1377–78.
Court No. 11-00497 Page 6
which, though not legally binding, are “generally indicative of the proper interpretation of the
various HTSUS provisions.” Kahrs Int’l, Inc. v. United States, 713 F.3d 640, 644–45 (Fed. Cir.
2013). If, consulting these sources, “the proper heading can be determined under GRI 1, the
court is not to look to the subsequent GRIs.” Dependable Packaging, 757 F.3d at 1378.
If, however, the proper heading cannot be determined under GRI 1 because the
merchandise is prima facie classifiable under two or more headings, the court moves to GRI 3.
GRI 3(a) provides that, in such a case, “[t]he heading which provides the most specific
description shall be preferred to headings providing a more general description.” In cases when
GRI 3(a) is unavailing, GRI 3(b) offers guidance for composite goods. Under GRI 3(b),
composite goods “shall be classified as if they consisted of the material or component which
gives them their essential character.” See, e.g., Alcan Food Packaging (Shelbyville) v. United
States, 771 F.3d 1364 (2014).
Infantino and the Government each claim that the Funny Farmer is prima facie
classifiable only under their respective proposed headings, and not under the other’s heading,
such that this case is properly resolved under GRI 1. Infantino alternatively claims that the
Funny Farmer is prima facie classifiable under both heading 9404 and 9503, and that heading
9503 is the more specific of the two, rendering it victorious under GRI 3(a). As to Infantino’s
alternative claim, the Government rebuts that heading 9404 is appropriate because it is the only
heading to “wholly” describe the Funny Farmer.
In its de novo review, the court agrees with Infantino’s alternative claim—but only in
part. Although some parts of the Funny Farmer fall within heading 9404 and others within
9503—such that the good falls prima facie within both headings—neither heading wholly
describes all parts of the Funny Farmer. That is, each heading describes “part only” of the Funny
Court No. 11-00497 Page 7
Farmer. GRI 3(a). In such a situation, the proper GRI to apply is GRI 3(b) for composite goods.
Under GRI 3(b), the court holds that the Funny Farmer’s essential character is imparted by its
toy components, which are classifiable under HTSUS heading 9503. Accordingly, the entire
good is classifiable as such.
I. The Merchandise Is Prima Facie Classifiable Under HTSUS Heading 9404
The court first holds that the merchandise is prima facie classifiable under
HTSUS heading 9404. As previously noted, heading 9404 covers “articles of bedding and
similar furnishing (for example, mattresses, quilts, eiderdowns, cushions, pouffes and pillows)
fitted with springs or stuffed or internally fitted with any material.” The Explanatory Notes
define “any material” to include “cotton, wool, horsehair, down, synthetic fibres, etc.”
Explanatory Note (“EN”) 94.04. The body and pillow of the Funny Farmer is stuffed with 100%
polyester-fiber filling and is a quilt, cushion, or similar item. HTSUS 9404. Thus, the court
agrees with the Government that the Funny Farmer is prima facie classifiable under HTSUS
heading 9404.
Infantino disagrees with this classification, but does not directly address the plain
language of HTSUS heading 9404. Pl.’s Reply to Gov’t’s Opp. to Pl.’s Mot. for Summ. J.
(“Pl.’s Reply Br.”) 12–13, ECF No. 49. Instead, Infantino merely attempts to distinguish a
case—Bauerhin Technologies Ltd. Partnership v. United States, 110 F.3d 774 (Fed. Cir. 1997)—
that the Government cited as an analogue favoring its preferred classification. In Bauerhin, the
Federal Circuit found that certain cushioned inserts “imported in the shape and form of” the baby
car seats into which they were to be inserted were “cushions” within the meaning of HTSUS
9404. Id. at 775, 779–80. In so holding, the court rejected the plaintiff’s argument that HTSUS
Court No. 11-00497 Page 8
heading 9404 was limited to items whose primary purpose is to facilitate sleeping or napping.
Id. at 776–778.
Infantino points out a number of physical differences between the Funny Farmer and the
cushioned seat inserts at issue in Bauerhin, for example that Funny Farmer does not form-fit its
receptacle shopping cart. But these differences are not the issue: The important point from
Bauerhin is that heading 9404 can cover non-sleep-purposed cushioning, like the Funny Farmer
in both its play-mat and shopping-cart configurations. Id. The Funny Farmer certainly qualifies
as cushioning, insofar as it is stuffed with a polyester-fiber filling and is designed to cushion a
child in either of its configurations. It is thus prima facie covered under HTSUS heading 9404,
and Infantino’s effort to distinguish Bauerhin is inapposite.
II. The Merchandise Is Prima Facie Classifiable Under HTSUS Heading 9503
The court’s inquiry does not end upon concluding that the Funny Farmer is prima facie
classifiable under HTSUS heading 9404. The court must next consider whether the Funny
Farmer is also classifiable under HTSUS heading 9503, which, inter alia, covers “other toys.”3
There being no HTSUS definition of the term “toys,” this court has determined a toy to be “an
object primarily designed and used for pleasurable diversion,” as opposed to practicality or
utility. Springs Creative Prods. Grp. v. United States, Slip Op. 13-107, 2013 WL 4307857, at *8

3
The Government argues that the court should decline to undertake its own HTSUS heading 9503 inquiry
because CBP already decided the matter in HQ H031397, and that ruling deserves Skidmore deference. Def.’s Br.
14–15. The court disagrees. In Mead, the Supreme Court held that courts may accord Skidmore deference to a
particular CBP ruling based on its “thoroughness, logic and expertness, its fit with prior interpretations, and any
other sources of weight.” 533 U.S. at 235; see also Rubie’s Costume Co. v. United States, 337 F.3d 1350, 1354
(Fed. Cir. 2003). In HQ H031397, CBP did not arrive at its ruling following a “‘deliberative notice-and-comment
. . . process,’” which is “an important factor [in] attributing Skidmore deference to a particular classification ruling.”
Structural Ind., Inc. v. United States, 356 F.3d 1366, 1370 (Fed. Cir. 2004) (quoting Rubie’s, 337 F.3d at 1356).
Moreover, CBP’s ruling is not reflective of a consistent pattern in classifying similar imports. See id. at 1370–71
(declining to afford Skidmore deference, in part, because no consistent pattern of rulings existed). As the Federal
Circuit has noted, “[a] single ruling standing alone has very limited value.” Id. at 1371. Finally, CBP’s analysis in
HQ H031397 is not particularly persuasive because it focuses heavily on the utilitarian features of the Funny Farmer
while only summarily considering the product’s countervailing amusing features.
Court No. 11-00497 Page 9
& n.4 (CIT Aug. 16, 2013).4 The court holds that the Funny Farmer is prima facie classifiable
under HTSUS heading 9503, because it was designed for and is used for pleasurable diversion.
Three aspects of the Funny Farmer render it prima facie classifiable as a toy: (1) the way
that Infantino trademarked and tested the Funny Farmer, (2) its product positioning,5 and (3) its
physical characteristics. First, Infantino trademarked and tested the Funny Farmer as a toy. The
trademark for the entire Shop & Play® line is associated with International Class 28, Pl.’s Br. at
Ex. 11, which is in turn defined to include “[g]ames and playthings” see 37 C.F.R. § 6.1 (2014).
And Infantino also designed and tested the Funny Farmer so that it would comply with U.S. and
British toy standards. Specifically, at Infantino’s behest, SGS Hong Kong Ltd. and Bureau
Veritas Consumer Products Services UK Ltd. tested the Funny Farmer for compliance with an
internationally recognized toy standard published by ASTM International and a mandatory
European toy standard published by the British Standards Institution. See Pl.’s Br. at Decl. of
Wicky Lee ¶¶ 3–4 & Exs. 14–16.
Infantino’s positioning of the Funny Farmer also indicates that the Funny Farmer is
prima facie classifiable as a toy. In positioning the Funny Farmer—and all other themed two-in-
one play mats sold under the Shop & Play® line—Infantino underscored the product’s
“uniqueness” as an “activity center that moms could use for their babies at home and then take
with them into an actual shopping environment” so that children could be “surrounded by their
toys and be entertained.” Cosky Dep. 27:10–24.

4
The Springs Creative court observed its duty to accord undefined terms their common and commercial
meanings by consulting dictionaries to reach the common meaning of “toy” quoted in the text. The court also found
that this definition was consistent with judicial interpretation and the HTSUS Explanatory Note 95.03(D) defining
other toys, in part, as “toys intended essentially for the amusement of persons (children or adults).” 2013 WL
4307857, at *7–8.
5
“Product positioning” refers to a company’s intended purpose for a product, as consistently
communicated across a variety of media platforms. See Cosky Dep. 25:22–26:14.
Court No. 11-00497 Page 10
This positioning is evident from the Funny Farmer’s catalogue placement and also its
packaging. Infantino included the Funny Farmer in its “2007 Toys & Activity Play” catalogue.
Def.’s Br. at Ex. B. In that catalogue, Infantino separated at least a portion of its products into
various tabs labeled “Pegged Toys,” “Boxed Toys,” “Gyms & Playmats,” “Puzzles,” and
“Shopping Cart Covers.” Id. The Shop & Play® line in the Funny Farmer theme appeared
under the “Shopping Cart Covers” tabs alongside other activity-themed shopping-cart inserts
sold under different product line names (Shop & Dine®, CartSafari™, CartTunes™). Though
the catalogue’s description of the Shop & Play® line emphasizes its utilitarian features
(including that the product is easy to clean, is protected by a material that inhibits the growth of
bacteria, contains storage pockets, and offers a back rest and soft padding), the description and
accompanying photograph also prominently portray the accompanying “plush pals.” Id.Furthermore, though Infantino does not refer to its Shop & Play® line as “toys” like other items
in the catalogue, the catalogue itself is called a “Toys and Activity Play” catalogue and does not
feature Infantino’s purely utilitarian travel products. See id.6 Thus, Infantino’s placement of the
Funny Farmer in the Toys and Activity Play catalogue suggests that the product is a toy.
So does the packaging of the Funny Farmer itself. The packaging displays the Shop &
Play® brand name on all sides of the box. The front, back, and side of the packaging describes
the Funny Farmer as a “2-in-1 play mat [that] turns any shopping cart into a clean, comfy activity
center.” Pl.’s Br. at Ex. 1. The front of the package also contains three different-sized
photographs. The largest photograph depicts a smiling baby seated in a shopping cart covered by

6
A screenshot of Infantino’s website from July 16, 2008 shows that Infantino separated products on its
website into “Toys,” “Carriers,” “Soft Travel,” “Shopping Cart Covers,” and “Puzzles.” Def.’s Br. at Ex. D. The
Funny Farmer was featured under the “Shopping Cart Covers” tab and not the “Toys” tab. Similarly, when
Infantino marketed its products at trade shows, Infantino separately featured the Shop & Play® line instead of
visually grouping the Shop & Play® products with its “Toys.” Pl.’s Br. at Exs. 7–8. But that the product was not
advertised as a pure “toy” does not preclude classification under HTSUS 9503. See Springs Creative, 2013 WL
4307857, at *9. Indeed, Infantino does not contend that the Funny Farmer is a toy in its entirety.
Court No. 11-00497 Page 11
the Funny Farmer, with the Funny Farmer’s toys dangling outside the cart. See id. Infantino
purposely positioned the toys outside the cart “to highlight them,” even though the toys usually
dangle inside the cart in front of the child. See id. at Decl. of Wendy McLean ¶ 13. A second
picture depicts a different angle of a child playing inside a shopping cart fitted with the Funny
Farmer while the storage pockets are visible. Lastly, the smallest of the photographs depicts the
Funny Farmer laid flat along with the description, “The perfect mat for tummy time play!”
The back cover of the packaging contains a more thorough description of the Shop &
Play® product line that emphasizes the product’s toy-like aspects in both its mat and cart-insert
configurations. Specifically, the packaging provides,
Gone shopping? Shop & Play™ can make your errands more rewarding for baby
and more relaxing for you. At home Shop & Play™ spreads out to surround baby
with a world of fun things to discover. At the store, its padded, wraparound
design transforms any shopping cart into a clean, secure and comfortable
activity center for baby to keep on playing and learning.
Pl.’s Br. at Ex. 1 (emphasis in original, in the form of words offset in different font colors). The
back cover also contains a picture of the Funny Farmer laid flat with arrows pointing to and
describing, inter alia, “[r]oomy storage pockets,” protective leg flaps, a “cozy headrest for
baby,” and “[f]ive removable toys that rattle, crinkle and squeak!” Id.Collectively, the packaging supports classification as a toy. The court acknowledges that
the packaging extols the utilitarian features of the Funny Farmer when used in a shopping cart.
But Infantino’s emphasis on the Funny Farmer’s shopping cart use was not intended to downplay
the product’s additional use as a traditional play mat. Rather, Infantino chose to highlight Funny
Farmer’s more novel use instead of its familiar use. See Pl.’s Br. at Decl. of Wendy McLean ¶
12. Furthermore, and most importantly, the uniform theme throughout the packaging is not the
product’s ability to keep a child comfortable, clean, or secure in a cart; it is that the product is
Court No. 11-00497 Page 12
uniquely situated to keep children entertained both at home and on-the-go. While only a portion
of the good’s packaging emphasizes the Funny Farmer’s shopping-cart use, the entirety of the
packaging highlights the Funny Farmer’s amusing activity elements (which do not vary based on
use in a cart or on the floor).
Finally, the Funny Farmer’s physical characteristics support prima facie classification as
a toy. An examination of the Funny Farmer confirms that it is a “configured shopping cart seat
cover or insert” that is visually similar to a traditional play mat and that has been “specifically
adapted to be reconfigured into a play mat for an infant or toddler.” Compare Pl.’s Br. at Ex. 1,
with Def.’s Br. at Ex. E at 2. But regardless of whether the Funny Farmer is used in a shopping
cart or on the floor, the item contains many features that are obviously amusing to small children.
See Pl.’s Br. at Ex. 1.7 The activity side of the Funny Farmer displays multiple bright colors and
is farm-themed, consisting of graphics of food items (such as watermelon slices, eggs, cheese,
peas, carrots, and strawberries), barnyard animals (such as rabbits, cows, chickens, and pigs), and
farmers (both male and female, wearing overalls and straw hats). See id. There are also several
removable cloth toys attached to the Funny Farmer. See id.; Def.’s Br. 4 (referring to the items
as toys). These toys dangle in front of the child when seated in a shopping cart and lie flat on the
ground when used as a play mat.
Three of the toys make crinkling sounds when squeezed—(1) a stuffed red tomato; (2) a
fabric square that contains a drawing of a cow along with the word “moo!” on one side and a
cheese wedge on the other side; and (3) a fabric square that contains a drawing of a chicken

7
The court need not address the parties’ arguments related to the admissibility of a publication by the U.S.
Consumer Products Safety Commission (“CPSC”) (appended to Infantino’s moving brief as Exhibit 13) identifying
various toy characteristics that are amusing to young children. The Government does not seriously dispute that
portions of the Funny Farmer are stimulating and amusing to young children and indeed refers to the items attached
to the mat as “toys” in its briefing. See Def.’s Br. 4. The amusement/play value of the Funny Farmer is apparent
from a simple physical examination of the merchandise, and reliance on the CPSC document is unnecessary.
Court No. 11-00497 Page 13
along with the words “cluck cluck!” on one side and a cooked egg on the other side. Another
toy, a stuffed cloth milk “carton,” rattles when shaken. Lastly, there is a “book” that opens to a
graphic of a smiling baby along with the phrase “I see you” on one side and a mirror on the
other. The front cover of the “book” contains graphics of a female and male farmer along with
the words “funny farmers!” and the back cover contains a graphic of a smiling baby waving
along with the words “bye-bye!” The Funny Farmer also features one sewn-in toy, a cloth
basket, that sits upright on the shopping-cart handle when the Funny Farmer is used in a cart.
The basket is intended to allow children to mimic the actions of their parent in a shopping cart by
moving the detachable toys (the tomato, the milk carton, etc.) in and out of the basket. See Pl.’s
Br. at Decl. of Wendy McLean ¶ 5 & Ex. 1.
Though the Funny Farmer offers much amusement value, the product also serves a
utilitarian purpose as a shopping-cart insert and contains features exclusively geared towards that
use. For instance, the Funny Farmer contains leg flaps that may be secured by Velcro when used
solely as a play mat. See id. at Decl. of Wendy McLean ¶ 10 & Ex. 1; Def.’s Br. at 3–4. The
Funny Farmer also has a removable waist belt that secures a child inside a shopping cart and
pockets intended to store items for parents while shopping. See Def.’s Br. at 3–4. Lastly, the
Funny Farmer contains a removable, decorative bolster pillow that supports a child’s back when
used in a shopping cart (and that serves to prop up a child engaged in tummy-time play). Id.Even so, many goods that have been classified as toys had some utilitarian value: for
instance, traditional play mats, inflatable floats, and play tents. See Ero Indus. v. United States,
24 CIT 1175, 1180–84, 118 F. Supp. 2d 1356, 1360–63 (2000) (classifying play tent with
licensed graphics of children’s characters as a toy even though it provided some utility as a
tented play structure); Ideal Toy Corp. v. United States, 78 Cust. Ct. 28, 34, C.D. 4688 (1977)
Court No. 11-00497 Page 14
(upholding classification of a brightly-colored, themed inflatable float as a toy); Pl.’s Br. at Ex.
12 (compiling CBP rulings classifying play mats and play gyms as toys); see also Springs
Creative, 2013 WL 4307857, at *9 (classifying a craft blanket kit as a toy notwithstanding its
utilitarian value as a blanket). While the court acknowledges that the Funny Farmer has more
utilitarian value than a pure play mat, it also lacks certain features detracting from its overall
utility as a shopping-cart insert. For instance, the Funny Farmer does not contain additional
padding where the child sits or near areas of the cart with which the child would come into
contact, thus detracting from the product’s use for comfort. See Pl.’s Br. 7–8 & Ex. 1. The
Funny Farmer also does not cover the sides of the cart, thus reducing the overall utility of the
product in keeping the child clean and germ-free. Id. Furthermore, the Funny Farmer is not a
particularly useful means of safely securing a child in a shopping cart, as the waist belt “is not
intended to prevent children from standing up in or climbing/falling out of a shopping cart.”
Pl.’s Br. at Ex. 1; see also Ideal Toy, 78 Cust. Ct. at 34 (finding that, given the play float’s
possibility of overturning, the prime motivation of a parent purchasing a play float is to amuse
the child and not to offer safe support in water). Lastly, the Funny Farmer cannot even be used
in a shopping cart until a child can sit upright and has value only as a play mat for the first
months of a child’s life. See Pl.’s Br. at Decl. of Wendy McLean ¶ 16. As such, the Funny
Farmer’s utilitarian value cannot be said to outweigh its amusement value, and the product is
prima facie classifiable as a toy.
III. Those Portions of the Funny Farmer that Impart the Product’s “Essential
Character” Are Classifiable under HTSUS Heading 9503
Having concluded that the Funny Farmer is prima facie classifiable under two headings
(HTSUS headings 9404 and 9503), the court must next apply GRI 3. Although GRI 3(a) would
normally provide for the Funny Farmer to be classified under the heading that “provides the most
Court No. 11-00497 Page 15
specific description,” that provision does not apply “when two or more headings each refer to
part only of the materials or substances contained in mixed or composite goods.” In such a
circumstance, GRI 3(b) applies instead, and provides that the goods at issue “shall be classified
as if they consisted of the material or component which gives them their essential character.”
See, e.g., Alcan Food Packaging, 771 F.3d at 1364.
The court holds that neither HTSUS heading 9404 nor heading 9503 describe the Funny
Farmer in full, and that the portions of the Funny Farmer that impart it with its “essential
character” are properly classified under HTSUS heading 9503. First, heading 9404 cannot fully
describe the Funny Farmer. That heading covers articles of bedding and the like; it clearly
would not cover, for example, the plush toys that can be detached from the Funny Farmer.8 As
for heading 9503, no party disputes that it describes the Funny Farmer only in part. See Pl.’s
Reply Br. 13–14. Its detachable seatbelt and backside storage pockets, which serve no
amusement purpose at all but are strictly utilitarian, make this clear. Def.’s Br. 18–19.
Therefore, both heading 9404 and heading 9503 describe only part of the Funny Farmer.
This being the case, the court’s mandate under GRI 3(b) is to decide which of the two
headings covers those parts of the Funny Farmer that impart it with its “essential character.”
This decision is informed by the Explanatory Note to GRI 3(b):
The factor which determines essential character will vary as between different
kinds of goods. It may, for example, be determined by the nature of the material

8
Because the court holds that HTSUS heading 9404 does not “wholly” cover the Funny Farmer, it need not
address those of the Government’s arguments premised on the notion that heading 9404 is the only heading to
wholly cover the product. See Def.’s Br. 18–19. The Government does not directly explain why it believes heading
9404 wholly covers the Funny Farmer: Rather, the Government simply claims that the Funny Farmer is prima facie
classifiable under 9404 despite its attached toys and the like, and then asserts that the product is wholly covered by
9404. See id. at 17–19. But, in order for GRIs 1 and 3 to make any sense, prima facie and whole coverage must be
discrete concepts. Otherwise, any product prima facie classifiable under at least one tariff heading pursuant to GRI
1 would be immune from composite classification under GRI 3(b). That would render GRI 3(b) incapable of
fulfilling its purpose: to act as a tiebreaker when a good is prima facie classifiable under more than one tariff
heading.
Court No. 11-00497 Page 16
or component, its bulk, quantity, weight or value, or by the role of a constituent
material in relation to the use of the good.
This note suggests that a close examination of the Funny Farmer itself is most helpful in
determining which of its constituent parts imparts its essential character. See also Simod Am.
Corp. v. United States, 872 F.2d 1572, 1578 (“[T]he merchandise itself is often a potent witness
in classification cases.”)
Upon such an examination, the court holds that the Funny Farmer’s essential character is
imparted by its toy components. First, per the Explanatory Note, the “bulk” of the Funny
Farmer’s components are classifiable under 9503: The detachable toys are toys by their own
terms, and the play mat would be classifiable as a toy were it not convertible into a cart insert.
See Pl.’s Br. at Ex. 12 (compiling CBP rulings classifying play mats and play gyms as toys); see
also Springs Creative, 2013 WL 4307857, at *9 (classifying a craft blanket kit as a toy
notwithstanding its utilitarian value as a blanket). The fact that most of the items that make up
the Funny Farmer are toys suggests that the entire good is a toy.
Second, the Funny Farmer’s packaging and pricing suggest that it is a toy. The
packaging, as already noted, uniformly touts the Funny Farmer’s benefits as a toy. Pl.’s Br. at
Decl. of Wendy McLean ¶ 13 & Ex. 1. By so doing, the packaging suggests that the Funny
Farmer is essentially a toy, and that its cart-insert function is an auxiliary use. Similarly, the
Funny Farmer is priced the same as Infantino’s other play mats (which, as discussed, would be
classified as toys). See id. at Decl. of Wendy McLean ¶ 20 & Ex. 2. This too indicates that the
Funny Farmer is a toy with cart-insert features. Thus, because the Funny Farmer’s packaging
and pricing suggest that it is a toy, and also because the bulk of the product’s components would
be so classifiable, the court holds that entire good is classifiable under heading 9503.
Court No. 11-00497 Page 17
CONCLUSION
Because the Funny Farmer is classifiable as a toy under HTSUS 9503.00.00, Customs
incorrectly liquidated the entries associated with Protest No. 2704-09-101681 at a six percent ad
valorem duty rate under HTSUS 9404.90.20. Accordingly, for reasons discussed above,
Infantino’s motion for summary judgment is granted and the Government’s cross-motion for
summary judgment is denied. Judgment will enter accordingly.
/s/ Richard W. Goldberg
Richard W. Goldberg
Senior Judge
Dated: 'HFHPEHU
New York, New York