Application for Further Review of Protest No. 2704-20-141606; Tariff Classification of The Comfy®

HQ H313594 May 21, 2021 OT:RR:CTF:FTM H313594 TSM CATEGORY: Classification TARIFF NO.: 6110.30.30 Center Director CEE – Apparel, Footwear and Textiles U.S. Customs & Border Protection 797 S. Zaragosa Rd. El Paso, TX 79907 Attn: Joy S. Davies, Import Specialist Re: Application for Further Review of Protest No. 2704-20-141606; Tariff Classification of The Comfy® Dear Center Director: The following is our decision with respect to the Application for Further Review (“AFR”) of protest number 2704-20-141606, timely filed by Stein Shostak Shostak Pollack & O’Hara LLP on August 26, 2020, on behalf of their client, Cozy Comfort Company LLC (hereinafter “Protestant”), regarding the tariff classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) of The Comfy®. FACTS: At issue in protest no. 2704-20-141606 is The Comfy®, which is assembled by sewing together a 100 percent knitted microfleece exterior fabric with a sherpa interior fabric lining. The Comfy® features a neck opening, a hood, a frontal marsupial pouch pocket open at both ends, and long-sleeves with ribbed cuffs. The hemmed bottom extends to below the waist and is curved with the back panel slightly longer than the front panel. The Comfy® is sold in two sizes. The Comfy® Original™ is made for adults and children over 10 years of age and The Comfy® Original Jr. ™ for children ages 10 and younger. The Comfy® Original measures approximately 37 inches long by 38 inches wide with sleeves measuring 15 inches wide. The Comfy® is reversible. The subject protest covers one entry, entered on July 12, 2019, under heading 6301, HTSUS, and specifically under subheading 6301.40.00, HTSUS, which provides for “Blankets and traveling rugs: Blankets (other than electric blankets) and traveling rugs, of synthetic fibers.” The subject entry was liquidated on April 10, 2020, under heading 6110, HTSUS, and specifically under subheading 6110.30.30, HTSUS, which provides for “Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted: Of man-made fibers: Other: Other: Other.” In its protest, dated August 26, 2020, Protestant argued that The Comfy® is classified in heading 6301, HTSUS, as “Blankets and traveling rugs,” or alternatively in heading 6307, HTSUS, as “Other made-up articles, including dress patterns.” In support of this argument, Protestant stated the following: The Comfy® is not a pullover, because it is open on one side like a sleep sack and includes a hood, a frontal marsupial pouch pocket open at both ends, and sleeves with ribbed cuffs designed to allow ready access to the pocket. When placed over the average person’s body, The Comfy® covers most of the body down to, at, or below the knees, severely impeding mobility. The Comfy® does not come in various sizes, is marketed as a wearable blanket, and is sold in the bedding or promotional products areas in retail stores, not in the clothing area. The Comfy®, like many blankets, measures nearly equally as wide as it is long; approximately 37 inches wide and 38 inches high. The armhole, like the rest of the blanket, is extraordinarily large (15 inches) and was designed to make it simple for anyone to pull their arms into their body to be fully enclosed into the blanket. In fact, persons are expected to keep their arms within The Comfy® close to their sides for the most part; the sleeves are designed to be used only seldomly to access the marsupial pocket or make it easier to grab a remote control or food or drink while relaxing on a couch. In addition, the bottom hem has no elastic cuff and measures 76 inches around, a substantial circumference common to blankets and not found in upper body apparel. In Allstar Mktg. Grp., LLC v. United States, 211 F. Supp. 3d 1319 (Ct. Int’l Trade 2017), the court held that use may also be considered to classify an article pursuant to an eo nomine provision when the use of the subject article is an important aspect of its identity, or when determining whether the subject article fits within the classification’s scope, based on the following factors: (a) its physical characteristics and features; (b) how it was designed and for what objectives, (i.e., its intended use); and (c) how it is marketed. All three factors weigh heavily against classification of The Comfy® as a pullover, for the following reasons: With regard to the physical characteristics and features, The Comfy® is constructed as a blanket and has dimensions typical for a blanket (the bottom hem measures seventy-six inches around, a substantial circumference common to blankets and not found in upper body apparel), is constructed of thick microfleece and sherpa layers, is very soft, heavy, long, and loose-fitting (with overall length below the knees and sleeve length beyond arm length, which is limiting of the wearer’s overall mobility and use of hands), and also measures more than three feet by three feet, with more than enough room for a person to bring their knees to their chest in a fetal position without stretching the fabric, which is not possible with a pullover. With regard to the design and intended use, The Comfy® was designed and intended to be loosely worn as an outer layer roughly covering the top 75 percent of a user to provide warmth, while sitting on a couch or lying in bed, and was not designed or intended to be used as a “normal article of apparel.” The Comfy® is designed almost exclusively for use inside a home or other living quarter and is neither appropriate nor useful as exterior clothing in public, because it could only reasonably be utilized to cover the body for warmth for a short period of time, like a blanket, during an outdoor sporting event or while walking a dog. With regard to sales and marketing, Cozy Comfort refers to The Comfy® as a “blanket” or a “throw,” and has obtained trademark protection to use the mark The Comfy® on “fleece blankets,” not garments. The Comfy® is sold in the bedding, housewares, general merchandise, ‘impulse buy,’ or ‘as-seen-on-TV’ departments of retail stores, not in the apparel department, and is displayed next to items such as comforters and blankets. Retail packaging and television advertising consistently describe The Comfy® as, inter alia, a “wearable blanket providing warmth from the top of your head to the tips of your toes.” The marketing materials depict people using The Comfy® as a warm cover, providing the feeling of getting a “warm hug,” as one might use a blanket, albeit one held in place even while standing up and permitting greater use of the hands with the addition of the sleeves. Numerous U.S. Customs Border Protection (“CBP”) rulings support classification of The Comfy under Heading 6307. Specifically, at issue are the following rulings, classifying various products under heading 6307, HTSUS: New York Ruling Letter (“NY”) N247924 (classifying an extreme weather suit that is to be used as a body covering while sitting or standing, has a hood, and, given its length, impedes mobility, precluding classification as a garment); NY N257129 (classifying a float suit with sleeves, an elastic waistband, and a pocket); Headquarters Ruling Letter (“HQ”) H229993 and HQ H287565 (classifying a hooded wearable blanket with hand paws); NY N127837 (classifying a hooded wrap throw blanket); NY N259577 (classifying a hooded throw blanket); NY N215058 (classifying a hooded blanket); NY H81207 (classifying a hooded poncho/blanket/cushion); NY L80760 (classifying a bib apron); HQ 961296 (classifying a slumber bag with stuffed dog appendages); HQ H243928 (classifying a cocoon sleep sack); NY N302193 (classifying a hooded blanket); and NY R02983 (classifying a sleep sack). An image of The Comfy® is displayed below:
ISSUE: What is the tariff classification of The Comfy®? LAW AND ANALYSIS: Initially, we note that the matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification, applicable rate and amount of duties chargeable. The protest was timely filed, within 180 days of liquidation of the entries. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2) (B) (ii), (iii) (codified as amended at 19 U.S.C. § 1514(c) (3) (2006)). Further Review of protest no. 2704-20-141606 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24 (a) because Protestant alleges that the decision against which the protest was filed is inconsistent with HQ H229993, dated July 30, 2013; HQ H287565, dated May 17, 2019; HQ 961296, dated March 21, 2000; HQ H243928, dated June 22, 2017; NY N247924, dated December 4, 2013; NY N257129, dated October 1, 2014; NY N127837, dated October 26, 2010; NY N259577, dated December 15, 2014; NY N215058, dated May 17, 2012; NY H81207, dated June 6, 2001; NY L80760, dated November 29, 2004; and NY N302193, dated February 5, 2019. Classification under the HTSUS is determined in accordance with the General Rules of Interpretation (“GRIs”).  GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes.  In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.  The 2019 HTSUS provisions under consideration are as follows: 6110 Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted * * * 6301 Blankets and traveling rugs * * * 6307 Other made up articles, including dress patterns * * * Note 7 to Section XI, which covers Chapter 63, HTSUS, provides in pertinent part: For the purposes of this section, the expression “made up” means: … (b) Produced in the finished state, ready for use…without sewing or other working… * * * In addition, in interpreting the HTSUS, the Explanatory Notes (“ENs”) of the Harmonized Commodity Description and Coding System may be utilized. The ENs to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). The EN to heading 61.10 states in relevant part: This heading covers a category of knitted or crocheted articles, without distinction between male or female wear, designed to cover the upper parts of the body (jerseys, pullovers, cardigans, waistcoats and similar articles). Articles incorporating incidentally protective components such as elbow pads sewn on sleeves and used for certain sports (e.g., soccer goalkeeper jerseys) remain classified in this heading. * * * The EN to heading 63.01 states in relevant part: Blankets and travelling rugs are usually made of wool, animal hair, cotton or manmade fibres, frequently with a raised pile surface, and generally of thick heavytexture material for protection against the cold. The heading also covers rugs and blankets for cots or prams.   Travelling rugs usually have fringes (generally formed by projecting warp or weft threads), but the edges of blankets are normally preserved by blanket stitching or binding.   The heading includes fabrics in the piece which, by the simple process of cutting along defined lines indicated by the absence of weft threads, may be converted into separate articles having the character of finished blankets or travelling rugs.  Electrically heated blankets are also included in the heading. * * * The EN to heading 63.07 states in relevant part: This heading covers made up articles of any textile material which are not included more specifically in other headings of Section XI or elsewhere in the Nomenclature. * * * In its submission, Protestant argued that The Comfy® is not classified under heading 6110, HTSUS, which provides for “Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted.” Protestant argued that The Comfy® is classified under heading 6301, HTSUS, which provides for “Blankets and traveling rugs,” or alternatively under heading 6307, HTSUS, which provides for “Other made-up articles, including dress patterns.” With respect to heading 6307, HTSUS, we note that it is a basket provision covering other made-up articles, not more accurately described in any other heading of the HTSUS. Therefore, heading 6307, HTSUS, would only apply if The Comfy® is not classified in heading 6110, HTSUS, or heading 6301, HTSUS. We first turn to the Protestant’s argument that The Comfy® is classified under heading 6301, HTSUS, which provides for “Blankets and traveling rugs.” We note that because the term “blanket” is not defined by the HTSUS or the relevant notes, we must consult dictionaries to ascertain its meaning.  The Merriam-Webster Dictionary defines “blanket” as “a large usually oblong piece of woven fabric used as a bed covering.”  The Cambridge Dictionary defines “blanket” as “a flat cover made of wool or similar warm material, usually used on a bed.”  Dictionary.com defines “blanket” as “a large, rectangular piece of soft fabric, often with bound edges, used especially for warmth as a bed covering.”  The above dictionary definitions show that a blanket is typically a large piece of warm fabric used as a covering. The referenced definitions are also consistent with the EN to heading 63.01, which provides in relevant part that “[b]lankets are usually made of wool, animal hair, cotton or manmade fibres, frequently with a raised pile surface, and generally of thick heavytexture material for protection against the cold.” In the protest, Protestant claimed The Comfy® is classified as a blanket, and that its physical characteristics, its intended use, as well as marketing, weigh heavily against its classification as a pullover. With regard to the physical characteristics, we note that the above-discussed dictionary definitions of the term “blanket” show that a blanket is typically a large piece of warm fabric used as a covering. In contrast, The Comfy® is pulled over the wearer’s head, and has sleeves and a hood. Despite Protestant’s claim that The Comfy® is open on one side “like a sleep sack,” upon examination of the images and sample we found no such opening. Moreover, while blankets are usually rectangular, flat, and do not typically have any circumference, The Comfy® is seventy-six inches in circumference and has front and back panels. With regard to the claim that the overall length of The Comfy® is below the knees and sleeve length beyond arm length of a typical wearer, which is limiting of mobility, we note that the promotional video available on the Protestant’s website does not support this claim.  In fact, The Comfy does not reach the knees of many of the featured wearers, including the two brothers that created The Comfy® (falling mid-thigh on both brothers). The above-referenced video as well as the images provided by the Protestant also show that The Comfy® can be used by reading enthusiasts, gamers, working from home employees, craft enthusiasts and those engaging in indoor games, and is suitable for walking the dog, getting the mail, raiding the fridge for snacks, and other similar activities, all of which require the use of one’s hands. It is also clear that the rib-knit cuffs provide tightening and keep the oversized sleeves from hanging over the wearer’s hands, thus allowing freedom of both hands. Moreover, because of the roomy design and wide bottom opening, mobility of the wearer is not constricted at all. This finding is especially appropriate because the information provided by the Protestant also shows that The Comfy® is appropriate for wear while dancing in the living room. Accordingly, we conclude that the physical characteristics of The Comfy® do not weigh against its classification as a pullover. In the protest, Protestant also argued that The Comfy® was designed and intended to be loosely worn as an outer layer for providing warmth almost exclusively inside a home, while sitting on a couch or lying in bed, and was not intended to be used as a “normal article of apparel.” Protestant further claimed that The Comfy® is neither appropriate nor useful as exterior clothing in public, because it could only reasonably be utilized to cover the body for warmth for a short period of time, like a blanket, during an outdoor sporting event or while walking a dog. We note that the Protestant acknowledged that The Comfy® may be used during outdoor sporting events or while walking a dog. Moreover, the above-discussed video available on the Protestant’s website, as well as the documents and images provided by the Protestant, show that The Comfy® is also used for taking walks in busy city streets, getting the mail, and performing other outdoor activities. We are not persuaded by the claim that The Comfy® could only be used outdoors for a short time. Instead, the record supports a finding that The Comfy® can be worn outside for as long as it takes to complete the outdoor activity that the wearer is engaged in. Accordingly, we conclude that the intended use of The Comfy® also does not weigh against its classification as a pullover. In its protest, Protestant also argued that The Comfy® is sold and marketed as a “blanket” or a “throw,” not a pullover. Protestant claimed that it has obtained trademark protection to use the mark The Comfy® on “fleece blankets,” not garments. In this regard, we note that it is a well-established principle that goods must be classified in their condition as imported. See Mita Copystar Am. v. United States, 21 F.3d 1079, 1082 (Fed. Cir. 1994); See also HQ H197758, dated April 27, 2012; HQ H225011, dated November 5, 2013; HQ H154040, dated June 9, 2011; HQ H135335, dated April 18, 2011. Accordingly, the fact that the Protestant has obtained trademark protection to be used on fleece blankets will not preclude classification of The Comfy® as a pullover if the record supports a finding that, in its condition as imported, it is in fact a pullover. Protestant further claimed that the Comfy® is sold in the bedding, housewares, general merchandise, ‘impulse buy,’ or ‘as-seen-on-TV’ departments of retail stores, not in the apparel department, and that the retail packaging and television advertising consistently describe The Comfy® as a “wearable blanket providing warmth from the top of your head to the tips of your toes.” In this regard, we note that while some retailers may sell The Comfy® in the housewares or bedding departments, The Comfy® is sold by other retailers, for example Amazon, in the “Clothing, Shoes and Jewelry” department, and more specifically under “Clothing, Shoes & Jewelry ? Men’s clothing ? Fashion Hoodies & Sweatshirts.”  In addition, we note that while The Comfy® is described as a wearable blanket, it is also described as both a “blanket” and a “sweatshirt,” or a “blanket sweatshirt.” For example, the creators of The Comfy® have identified it on Shark Tank, December 3, 2017, as a “blanket that’s a sweatshirt.”  Likewise, during a QVC presentation, The Comfy® was also referred to as a “blanket sweatshirt.”  Accordingly, we conclude that the marketing of The Comfy® also does not weigh against its classification as a sweatshirt or a pullover. In support of its argument that The Comfy® is classified as a blanket, Protestant also cited Allstar Mktg. Grp., LLC v. United States, 211 F. Supp. 3d 1319 (Ct. Int’l Trade 2017). In this regard, we note that at issue in that case was the Snuggie®, which consisted of a 71-by-54-inch rectangular piece of polyester fleece knit fabric, with 28.5-inch sleeves attached to the front. The Snuggie® was completely open with no closure in the back and could therefore only be worn on the front. Based on these characteristics, the court concluded that The Snuggie® was designed and used as a blanket, albeit one with sleeves. In contrast, The Comfy® is pulled over the wearer’s head and has no opening. It is not a single large piece of fabric, but rather a garment assembled from the following components: front and back panels, sleeves, cuffs, a hood, and an added front pocket to be used while wearing. Accordingly, we conclude that, unlike the Snuggie®, The Comfy has characteristics that are substantially in excess of the features of a blanket. Therefore, the tariff classification of the Snuggie® has no effect on the tariff classification of The Comfy®. Consistent with the foregoing, we conclude that although The Comfy® is marketed as a “wearable blanket,” it does not preserve the essential characteristics of a “blanket” - a large piece of fabric providing a warm covering. Though the materials used are typical of those used for blankets, the features of The Comfy® are substantially in excess of the features of a blanket within the common meaning of the term. Accordingly, we find that it is not a blanket of heading 6301, HTSUS. We next consider whether The Comfy® is classified under heading 6110, HTSUS, which provides for “Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted.” In this regard, we note that EN 61.10 further provides in relevant part that “[t]his heading covers a category of knitted or crocheted articles, without distinction between male or female wear, designed to cover the upper parts of the body (jerseys, pullovers, cardigans, waistcoats and similar articles). Moreover, with regard to the term “pullovers,” in a June 2008 Informed Compliance Publication (“ICP”), entitled Classification: Apparel Terminology under the HTSUS, CBP described “pullovers” as “upper body knit garments without a full-length opening, which are pulled over the head and are not more specifically provided for elsewhere in chapter 61.” Upon review and consistent with the foregoing discussion, we conclude that The Comfy® is a garment made of knitted microfleece exterior fabric, which is designed to be pulled over the wearer’s head and cover the upper part of the body, and which, contrary to the Protestant’s claim, does not have a full-length opening. As such, it meets the definitions of the term “pullover” found in the EN 61.10 and further elaborated on in the above-referenced ICP. With regard to the Protestant’s claims that The Comfy® is not a pullover because it has features such as a hood, a frontal marsupial pouch pocket open at both ends, sleeves with ribbed cuffs designed to allow ready access to the pocket, large armholes, and no elastic cuff at the bottom, we find that neither one of these features is inconsistent with the definitions of the term “pullover” discussed above. Accordingly, they do not preclude classification of The Comfy® as a pullover. In addition, although the Protestant also claimed that The Comfy® covers most of the body down to the knees, or even below the knees, and severely impedes mobility, we find no support for these claims. In fact, the promotional video available on the Protestant’s website shows that The Comfy® does not reach the knees of many of the featured wearers, including the two brothers that created The Comfy® (falling mid-thigh on both brothers). In the protest, Protestant also claimed that The Comfy® measures 76 inches around, making the wearers able to bring their knees to the chest in a fetal position without stretching the fabric, which is common to blankets and not found in upper body apparel. With regard to these claims, we note that garments of heading 6110, HTSUS, have no limitations related to the circumference. Accordingly, based on the foregoing we conclude that The Comfy® is classified under heading 6110, HTSUS, which provides for “Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted.” Turning to heading 6307, HTSUS, we note that as referenced above, this heading is a basket provision covering other made-up articles not more accurately described in any other heading of the HTSUS. Since The Comfy® is more accurately described in and classified under heading 6110, HTSUS, heading 6307, HTSUS, does not apply. In this regard, it should also be noted that in support of its argument that The Comfy® is classified under heading 6307, HTSUS, the Protestant referenced multiple rulings classifying various articles under heading 6307, HTSUS. As referenced above, at issue are the following rulings: NY N247924 (classifying an extreme weather suit that is to be used as a body covering while sitting or standing, has a hood, and, given its length, impedes mobility, precluding classification as a garment); NY N257129 (classifying a float suit with sleeves, an elastic waistband, and a pocket); HQ H229993 and HQ H287565 (classifying a hooded wearable blanket with hand paws); NY N127837 (classifying a hooded wrap throw blanket); NY N259577 (classifying a hooded throw blanket); NY N215058 (classifying a hooded blanket); NY H81207 (classifying a hooded poncho/blanket/cushion); NY L80760 (classifying a bib apron); HQ 961296 (classifying a slumber bag with stuffed dog appendages); HQ H243928 (classifying a cocoon sleep sack); NY N302193 (classifying a hooded blanket); and NY R02983 (classifying a sleep sack). Upon further review, we find that none of the referenced rulings are authoritative with regard to the tariff classification of The Comfy®. This is because at issue in those rulings are articles that are different from The Comfy® in their description and characteristics. Moreover, unlike The Comfy®, those articles cannot be classified under another heading of the HTSUS. Based on the foregoing, The Comfy® is classified under heading 6110, HTSUS, and specifically under subheading 6110.30.30, HTSUS, which provides for “Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted: Of man-made fibers: Other: Other: Other.” HOLDING: By application of GRI 1, we find that The Comfy® is classified under heading 6110, HTSUS, and specifically under subheading 6110.30.30, HTSUS, which provides for “Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted: Of man-made fibers: Other: Other: Other.” The 2019 column one, general rate of duty is 32% ad valorem. You are instructed to DENY the protest. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel, and to the public on the Customs Rulings Online Search System (CROSS) at https://rulings.cbp.gov/ which can be found on the U.S. Customs and Border Protection website at http://www.cbp.gov and other methods of public distribution. Sincerely, For Craig T. Clark, Director Commercial and Trade Facilitation Division