Extracts from Court of International Trade decision

(Complete text of decision is at http://www.cit.uscourts.gov/slip_op/slip_op03/slip-op%2003-2.pdf)

TOY BIZ, Inc.,
v.
UNITED STATES
Court No. 96-10-02291
Jan 3, 2003

All these "X-Men" (or "X-Force") figures manifest human characteristics at varying degrees. Some clearly resemble human beings, some clearly not. Most are on the borderline in that they exhibit a mix of human and non-human characteristics, such as arms and legs alongside non-human features (for example, one of the more popular figures of the series "Wolverine" has long, sharp-looking claws grafted onto his hands that come out from under his skin along with wolf-like hair and ears).

Whatever the degree is to which they resemble human beings, the court finds that these action figures do not represent human beings and are therefore not properly classifiable as "dolls" under HTSUS heading 9502. The court bases its finding on at least three observations. First, most of the figures at issue exhibit at least one non-human characteristic. The court does not agree with Customs that the few non-human characteristics the figures possess, such as claws or robotic eyes, "fall far short of transforming [these figures] into something other than the human beings which they represent" because the issue under the HTSUS is not a straight headcount of the human features a figure may possess, rather the issue is whether the figure as a whole and in a wider context represents a human being. Moreover, under the more restrictive "dolls" provision of the HTSUS, even one non-human feature the figure possesses prohibits its classification as a "doll."

Second, these Marvel characters are known in popular culture as "mutants." That fact further informs their classification. Cf., e.g., HQ 950200 (Dec. 18, 1991) (Customs recognizing that some knowledge from popular culture is necessary to identify certain figures, such as angels, devils, monsters, as "non-human"). They are more than (or different than) humans. These fabulous characters use their extraordinary and unnatural physical and psychic powers on the side of either good or evil. ^[FN1] The figures' shapes and features, as well as their costumes and accessories, are designed to communicate such powers. For example, "Storm" (a tall and thin figure with white mane-like hair and dark skin) in assortment 4900 K has a lightening bolt as an accessory, reflecting the character's power to summon storms at will. "Rictor" in assortment 4950 E which has a human appearance but comes with a built-in wheel in the back which when turned makes the figure vibrate and thus is designed to simulate Rictor's "power to generate earthquake-like vibrations." "Pyro" in assortment 4950 E has a costume that, with two long hoses attached to it, is designed to aid the character's "mutant ability to control and shape flames." ^[FN2]

FN1: The back of the packaging for the duo "Professor X vs. Magneto" tells the story in synopsis:
Both Professor Charles Xavier and his friend Magnus agreed that an upsurge in mutant activity had begun - what they couldn't agree on is how mutants and normal humans could co-exist. Believing that mutants must rule, Magnus became Magneto, the evil master of magnetism. To combat him, the telepathic Professor-X formed the X-Men, a group that would represent his dream of human-mutant cooperation!

FN2: In the rare instances that a figure seems to exhibit no non-human characteristics, its "mutant" nature is communicated otherwise. For example, "Longshot" in assortment 4900 F looks like a young man with blond long hair who is equipped with knives, and wears unusual clothing. Longshot has extraordinary abilities at par with the other "X-Men" figures (as provided for on its packaging):

Once a slave to the extradimensional tyrant Mojo, Longshot eventually escaped, came to Earth and joined forces with the X-Men. Armed with razor-sharp throwing knives, his combined abilities of amazing agility and incredible luck allow him to take on the fiercest foes.

Third, the "X-Men" figures are marketed and packaged as "mutants" or "people born with 'x-tra' power." That they are denoted as such by the manufacturer or the importer lends further credence to the assertion that they represent creatures other than (or more than) human beings. See R. Dakin & Co. v. United States, 14 CIT 797, 801, 752 F. Supp. 483, 486 (1990) (noting that "the importer's own consistent reference to the subject merchandise [by name] is a factor - albeit not the only one - to be considered for tariff classification purposes"); Dan-Dee Imps., Inc. v. United States, 7 CIT 241, 246 (1984) (finding reference to article on packaging by a particular name a "significant" factor). ^[FN3] For all the foregoing reasons, the "X-Men" and "X-Force" figures considered are not properly classifiable as "dolls" under HTSUS heading 9502.

FN3: The court does not wish to imply that any toy designated by the manufacturer/importer as "non-human" can escape the "doll" designation under the HTSUS. Here, the figures are not merely packaged as such, but known to anybody familiar with the Marvel Comics characters as "mutants."

All these "X-Men" (or "X-Force") figures manifest human characteristics at varying degrees. Some clearly resemble human beings, some clearly not. Most are on the borderline in that they exhibit a mix of human and non-human characteristics, such as arms and legs alongside non-human features (for example, one of the more popular figures of the series "Wolverine" has long, sharp-looking claws grafted onto his hands that come out from under his skin along with wolf-like hair and ears). Whatever the degree is to which they resemble human beings, the court finds that these action figures do not represent human beings and are therefore not properly classifiable as "dolls" under HTSUS heading 9502. The court bases its finding on at least three observations. First, most of the figures at issue exhibit at least one non-human characteristic. The court does not agree with Customs that the few non-human characteristics the figures possess, such as claws or robotic eyes, "fall far short of transforming [these figures] into something other than the human beings which they represent" because the issue under the HTSUS is not a straight headcount of the human features a figure may possess, rather the issue is whether the figure as a whole and in a wider context represents a human being. Moreover, under the more restrictive "dolls" provision of the HTSUS, even one non-human feature the figure possesses prohibits its classification as a "doll." Second, these Marvel characters are known in popular culture as "mutants." That fact further informs their classification. Cf., e.g., HQ 950200 (Dec. 18, 1991) (Customs recognizing that some knowledge from popular culture is necessary to identify certain figures, such as angels, devils, monsters, as "non-human"). They are more than (or different than) humans. These fabulous characters use their extraordinary and unnatural physical and psychic powers on the side of either good or evil. ^[FN1] The figures' shapes and features, as well as their costumes and accessories, are designed to communicate such powers. For example, "Storm" (a tall and thin figure with white mane-like hair and dark skin) in assortment 4900 K has a lightening bolt as an accessory, reflecting the character's power to summon storms at will. "Rictor" in assortment 4950 E which has a human appearance but comes with a built-in wheel in the back which when turned makes the figure vibrate and thus is designed to simulate Rictor's "power to generate earthquake-like vibrations." "Pyro" in assortment 4950 E has a costume that, with two long hoses attached to it, is designed to aid the character's "mutant ability to control and shape flames." ^[FN2]
	FN1: The back of the packaging for the duo "Professor X vs. Magneto" tells the story in synopsis: Both Professor Charles Xavier and his friend Magnus agreed that an upsurge in mutant activity had begun - what they couldn't agree on is how mutants and normal humans could co-exist. Believing that mutants must rule, Magnus became Magneto, the evil master of magnetism. To combat him, the telepathic Professor-X formed the X-Men, a group that would represent his dream of human-mutant cooperation! FN2: In the rare instances that a figure seems to exhibit no non-human characteristics, its "mutant" nature is communicated otherwise. For example, "Longshot" in assortment 4900 F looks like a young man with blond long hair who is equipped with knives, and wears unusual clothing. Longshot has extraordinary abilities at par with the other "X-Men" figures (as provided for on its packaging): Once a slave to the extradimensional tyrant Mojo, Longshot eventually escaped, came to Earth and joined forces with the X-Men. Armed with razor-sharp throwing knives, his combined abilities of amazing agility and incredible luck allow him to take on the fiercest foes.
Third, the "X-Men" figures are marketed and packaged as "mutants" or "people born with 'x-tra' power." That they are denoted as such by the manufacturer or the importer lends further credence to the assertion that they represent creatures other than (or more than) human beings. See R. Dakin & Co. v. United States, 14 CIT 797, 801, 752 F. Supp. 483, 486 (1990) (noting that "the importer's own consistent reference to the subject merchandise [by name] is a factor - albeit not the only one - to be considered for tariff classification purposes"); Dan-Dee Imps., Inc. v. United States, 7 CIT 241, 246 (1984) (finding reference to article on packaging by a particular name a "significant" factor). ^[FN3] For all the foregoing reasons, the "X-Men" and "X-Force" figures considered are not properly classifiable as "dolls" under HTSUS heading 9502.
	FN3: The court does not wish to imply that any toy designated by the manufacturer/importer as "non-human" can escape the "doll" designation under the HTSUS. Here, the figures are not merely packaged as such, but known to anybody familiar with the Marvel Comics characters as "mutants."

TOY BIZ, Inc., v. UNITED STATES Court No. 96-10-02291 Jan 3, 2003

TOY BIZ, Inc.,
v.
UNITED STATES
Court No. 96-10-02291
Jan 3, 2003