United States Court of Appeals
for the Federal Circuit
__________________________
CAMELBAK PRODUCTS, LLC
(SUCCESSOR-IN-INTEREST TO CAMELBAK PRODUCTS,
INC.),
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
__________________________
2010-1420
__________________________
Appeal from the United States Court of International
Trade in case no. 05-CV-0249, Judge Delissa A. Ridgway.
__________________________
Decided: June 16, 2011
__________________________
ARTHUR K. PURCELL, Sandler, Travis & Rosenberg,
P.A., of New York, New York, argued for plaintiff-
appellant. With him on the brief was LARRY T. ORDET.
JASON M. KENNER, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of New York, New York, argued for defendant-
appellee. With him on the brief were BARBARA S.
WILLIAMS, Attorney in Charge; and TONY WEST, Assistant
CAMELBAK PRODUCTS v. US 2
Attorney General, JEANNE E. DAVIDSON, Director, of
Washington, DC.
__________________________
Before BRYSON, CLEVENGER, and PROST, Circuit Judges.
Opinion for the court filed by Circuit Judge CLEVENGER.
Dissenting opinion filed by Circuit Judge BRYSON.
CLEVENGER, Circuit Judge.
This customs case concerns the proper classification of
ten styles of CamelBak Products, LLC’s (“CamelBak”)
back-mounted packs (“subject articles”). 1 CamelBak
appeals the judgment and decision of the United States
Court of International Trade denying CamelBak’s motion
for summary judgment, granting the United States’ (the
“government”) cross-motion for summary judgment, and
holding that the merchandise at issue was properly
classified as “travel, sports, and similar bags” under
subheading 4202.92.30 of the Harmonized Tariff Schedule
of the United States (“HTSUS”). 2 CamelBak Prods., LLC
v. United States, 704 F. Supp. 2d 1335 (Ct. Int’l Trade
2010) (“CamelBak”). For the reasons set forth below, we
reverse and remand the case for further proceedings.
I
The subject articles are imported back-mounted packs
used for outdoor activities and athletics, including cycling,
running, hiking and skiing, and are designed to deliver
water to the user in a “hands-free” fashion, allowing the
1
CamelBak markets the ten styles of merchandise
at issue as “Ares,” “Blow Fish,” “Day Star,” “H.A.W.G.,”
“Scout,” “M.U.L.E.,” “SnoDAWG,” “SnoBound,” “Isis,” and
“Ventoux.”
2
References to the HSTUS and the General Rules
of Interpretation throughout this opinion are to the 16th
edition, published on December 30, 2003.
3 CAMELBAK PRODUCTS v. US
user to consume water on-the-go without having to inter-
rupt activity. Each of the subject articles is a textile bag
with padded adjustable shoulder straps and features: (a) a
polyurethane reservoir or bladder surrounded by a closed-
cell polyethylene foam compartment designed to carry
and maintain the temperature of water or another bever-
age; (b) a hydration delivery system composed of flexible
tubing attached to the reservoir, a bite valve and a shut-
off valve; and (c) a cargo compartment designed to hold
food, clothing, gear and supplies. Each reservoir has a
capacity of between 35 and 100 ounces of liquid, and each
cargo compartment can accommodate between 300 and
1680 cubic inches, depending on the style of pack.
Between August 6, 2004 and August 27, 2004, U.S.
Customs and Border Protection (“Customs”) liquidated
and classified the merchandise at issue under subheading
4202.92.30, HTSUS, as “Trunks, . . . traveling bags,
insulated food or beverage bags, . . . knapsacks and back-
packs, . . . sports bags . . . and similar containers . . . of
textile materials: . . . With outer surface of sheeting of
plastic or of textile materials: . . . travel, sports and simi-
lar bags” at a rate of duty of 17.8% ad valorem, based on a
prior Customs ruling. 3 After liquidation, CamelBak filed
3
On June 26, 2000, CamelBak filed an Administra-
tive Ruling Request with Customs, seeking a ruling on
the classification of eleven of CamelBak’s back-mounted
packs. On December 18, 2001, Customs issued ruling
number HQ964444, classifying three of CamelBak’s packs
in subheading 4202.92.05 as “Trunks, . . . traveling bags,
insulated food or beverage bags, . . . knapsacks and back-
packs, . . . sports bags . . . and similar containers . . . of
textile materials: . . . With outer surface of sheeting of
plastic or of textile materials: . . . Insulated food and
beverage bags . . . With outer surface of textile materials.”
Customs classified the remaining eight packs (including
the Blow Fish, H.A.W.G. and M.U.L.E.) in subheading
CAMELBAK PRODUCTS v. US 4
a protest. Customs denied the protest and this action
commenced, pursuant to 28 U.S.C. § 1581(a), in the Court
of International Trade.
The parties filed cross-motions for summary judgment
at the trial court addressing the proper classification of
the subject articles. In its motion for summary judgment,
CamelBak argued that the subject articles constituted
“composite goods” made up of two components—the cargo
component, which was prima facie classifiable as a
“travel, sports, [or] similar bag[]” and the hydration
component, which was prima facie classifiable as an
“insulated beverage bag.” CamelBak contended that the
subject articles had to be classified pursuant to General
Rule of Interpretation (“GRI”) 3(b)’s essential character
test because the two applicable subheadings refer to part
only of the subject articles. Specifically, CamelBak ar-
gued that the following portions of HTSUS heading 4202
were relevant to the analysis:
4202 Trunks, suitcases, vanity cases, attache
cases, briefcases, school satchels, specta-
cle cases, binocular cases, camera cases,
musical instrument cases, gun cases, hol-
sters and similar containers; traveling
bags, insulated food and beverage bags,
toiletry bags, knapsacks and backpacks,
handbags, shopping bags, wallets, purses,
map cases, cigarette cases, tobacco
pouches, tool bags, sports bags, bottle
cases, jewelry boxes, powder cases, cutlery
cases and similar containers, of leather or
of composition leather, of sheeting of plas-
tics, of textile materials, of vulcanized fi-
4202.92.3020 as “travel, sports, and similar bags . . .
backpacks.”
5 CAMELBAK PRODUCTS v. US
ber or of paperboard, or wholly or mainly
covered with such materials or with pa-
per:
Other:
4202.92 With outer surface of sheeting of plas-
tic or of textile materials:
4202.92 Insulated food or beverage bags: With
outer surface of textile materials
4202.92.04 Beverage bags whose interior
incorporates only a flexible plas-
tic container of a kind for stor-
ing and dispensing potable
beverages through attached
flexible tubing 7%
4292.92.08 Other 7%
4292.92.30 Travel, sports and similar bags:
Other 17.8%
Applying the essential character test, CamelBak ar-
gued that the hydration component (i.e., the insulated
beverage bag component) gave the subject articles their
essential character and that the subject articles were
properly classified as either “insulated food and beverage
bags . . . whose interior incorporates only a flexible plastic
container of a kind for storing and dispensing potable
beverages through attached flexible tubing” under sub-
heading 4202.92.04 or, alternatively, “insulated food and
beverage bags . . . other” under subheading 4202.92.08,
both dutiable at a rate of 7% ad valorem.
The government argued that the subject articles were
not composite goods, but rather that a single tariff provi-
sion—the “travel, sports, and similar bags” provision—
applied to the articles in their entirety. Thus, the gov-
CAMELBAK PRODUCTS v. US 6
ernment contended that Customs properly classified the
subject articles as a whole as “travel, sports, and similar
bags” under subheading 4202.92.30, HTSUS, through a
straightforward application of GRI 1.
The Court of International Trade upheld Customs’
classification decision concerning the subject articles and
granted judgment for the government. CamelBak ap-
peals, and we have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(5).
II
We review the grant of summary judgment by the
Court of International Trade without deference. See, e.g.,
Structural Indus., Inc. v. United States, 356 F.3d 1366,
1368 (Fed. Cir. 2004). We review questions of law de
novo, including the interpretation of the terms of the
HTSUS, whereas factual findings of the Court of Interna-
tional Trade, including which heading the merchandise
falls within, are reviewed for clear error. Home Depot
U.S.A., Inc. v. United States, 491 F.3d 1334, 1335 (Fed.
Cir. 2007). “A finding is clearly erroneous when, although
there is evidence to support it, the reviewing court is left
with a ‘definite and firm conviction that a mistake has
been committed.’” Timber Prods. Co. v. United States, 515
F.3d 1213, 1220 (Fed. Cir. 2008) (quoting United States v.
United States Gypsum Co., 333 U.S. 364, 395 (1948)).
III
A classification decision involves two underlying
steps: (1) ascertaining the proper meaning of the tariff
provisions, which is a question of law; and (2) determining
which heading the particular merchandise falls within,
which is a question of fact. Cummins Inc. v. United
States, 454 F.3d 1361, 1363 (Fed. Cir. 2006). The GRIs
govern classifications of imported goods under HTSUS
7 CAMELBAK PRODUCTS v. US
and we apply them in numerical order. BASF Corp. v.
United States, 482 F.3d 1324, 1325-26 (Fed. Cir. 2007).
“Under GRI 1, the court must determine the appro-
priate classification ‘according to the terms of the head-
ings and any relative section of chapter notes’ with all
terms construed to their common commercial meaning.”
Millennium Lumber Distrib., Ltd. v. United States, 558
F.3d 1326, 1328-29 (Fed. Cir. 2009). We apply GRI 1 as a
substantive rule of interpretation, such that when an
imported article is described in whole by a single classifi-
cation heading or subheading, then that single classifica-
tion applies, and the succeeding GRIs are inoperative.
See Mita Copystar Am. v. United States, 160 F.3d 710, 712
(Fed. Cir. 1998). With regard to assessing an imported
article pursuant to GRI 1, we consider a HTSUS heading
or subheading an eo nomine provision when it describes
an article by a specific name. Carl Zeiss, Inc. v. United
States, 195 F.3d 1375, 1379 (Fed. Cir. 1999). Absent
limitation or contrary legislative intent, an eo nomine
provision “include[s] all forms of the named article[,]”
even improved forms. Id.
However, as we held in Casio, Inc. v. United States, 73
F.3d 1095 (Fed. Cir. 1996), when an article “‘is in charac-
ter or function something other than as described by a
specific statutory provision—either more limited or more
diversified—and the difference is significant,’” it is not
properly classified within an eo nomine provision. 73 F.3d
at 1097 (quoting Robert Bosch Corp. v. United States, 63
Cust. Ct. 96, 103-04, 1969 WL 13787 (1969)). In order to
determine whether the subject article is classifiable
within an eo nomine provision, we look to whether the
subject article is merely an improvement over or whether
it is, instead, a change in identity of the article described
by the statute. See United Carr Fastener Corp. v. United
States, 54 C.C.P.A. 89, 91 (CCPA 1967). “The criterion is
CAMELBAK PRODUCTS v. US 8
whether the item possess[es] features substantially in
excess of those within the common meaning of the term.”
Casio, 73 F.3d at 1098 (quotation marks and citation
omitted) (emphasis in original).
When goods are prima facie classifiable under two or
more headings or subheadings of HTSUS, we apply GRI 3
to resolve the classification. Home Depot, 491 F.3d at
1336. We apply GRI 3(a) when the goods, as a whole, are
prima facie classifiable under two or more headings or
subheadings to determine which heading provides the
most specific description of the goods. See GRI 3(a);
Bauer Nike Hockey USA, Inc. v. United States, 393 F.3d
1246, 1252 (Fed. Cir. 2004). When two subheadings “each
refer to part only of the materials . . . contained in . . .
composite goods,” they are “regarded as equally specific”
under GRI 3(a) and we apply GRI 3(b) to resolve the
classification. GRI 3(a). GRI 3(b) instructs that we
classify composite goods made up of different components
“as if they consisted of the material or component which
gives them their essential character.”
IV
In reaching its conclusion that the subject articles are
backpacks, the Court of International Trade began its
analysis by applying GRI 1 to determine whether the
subject articles were classifiable as a whole under a
particular heading and subheadings. Turning to heading
4202, which the parties agreed applied to the subject
articles, the Court of International Trade defined the
terms “traveling bag,” “sports bag,” “insulated food or
beverage bag,” and “backpack” 4 and concluded that the
4
Specifically, the Court of International Trade de-
fined the terms as follows: (1) a “traveling bag” includes
“all forms of flexible containers used by travelers to carry
or store items[,]” CamelBak, 704 F. Supp. 2d at 1340-41;
9 CAMELBAK PRODUCTS v. US
subject articles were properly classifiable under heading
4202, HTSUS. CamelBak, 704 F. Supp. 2d at 1340.
The Court of International Trade next determined
that the subject articles were composed of an outer sur-
face of textile materials and properly classifiable under
4202.92, HTSUS. Id. at 1342.
Turning to the final set of HTSUS subheadings appli-
cable to the subject articles, the Court of International
Trade noted that there were four competing subheadings:
“‘[i]nsulated food or beverage bags,’ ‘[t]ravel, sports and
similar bags,’ ‘[m]usical instrument cases,’ and ‘[o]ther.’”
Id. The Court of International Trade then looked to
Additional U.S. Note 1 to HTSUS Chapter 42 for guid-
ance. Additional U.S. Note 1 explains that the subhead-
ing “travel, sports and similar bags” is broad and refers to
“goods . . . of a kind designed for carrying clothing and
other personal effects during travel, including backpacks
and shopping bags of this heading . . . .” Id.
The Court of International Trade found as a fact that
a portion of each of the subject articles was designed to
carry water, while the remainder of the capacity was
designed to carry cargo. Id. at 1344. Nevertheless, the
Court of International Trade reasoned that the articles
(2) a “sports bag” includes “all forms of flexible containers
used by individuals to carry or store items while they are
engaged in activities involving physical exertion, or active
pastime or recreation[,]” id. at 1341; (3) an “insulated
beverage bag” includes “all forms of flexible reusable
containers that are used to maintain the temperature of
potable liquids during their transport or temporary stor-
age[,]” id.; and (4) a “backpack” includes all forms of “bags
made of sturdy material, which feature padded, adjust-
able shoulder straps, and which are designed to permit
supplies and gear to be carried on the wearer’s back[,]” id.
at 1341-42.
CAMELBAK PRODUCTS v. US 10
“fall[] within the tariff provision covering ‘travel, sports,
and similar bags,’ and [are] prima facie classifiable there-
under[,]” because they are properly described as “back-
packs.” Id. at 1342. The Court of International Trade
further concluded that the subject articles could not be
“fairly described as ‘beverage bags’” as a whole because
“there is simply too much that is designed to carry cargo
(rather than beverages).” Id. at 1344. The Court of
International Trade also determined that “the water-
carrying and -dispensing functionalities” of the subject
articles “do not remove them from the purview of ‘travel,
sports and similar bags’” because the tariff provision
covering “travel, sports, and similar bags” is an eo nomine
provision which includes all forms of the named article,
even improved forms. Id. at 1343.
Having concluded that the “travel, sports and similar
bags” subheading encompassed the subject articles as a
whole, the Court of International Trade applied GRI 1
and classified the subject articles under subheading
4202.92.30. Id. at 1345. In so doing, the Court of Inter-
national Trade rejected CamelBak’s argument that the
hydration component of the subject articles removed them
from the scope of the eo nomine backpack provision,
thereby making them new articles of commerce and
composite goods. See id. Addressing CamelBak’s argu-
ment, the Court of International Trade explained that
“[t]he mere fact that a piece of merchandise may consist of
more than one component does not necessarily make that
merchandise a ‘composite good’ subject to classification
under GRI 3(b).” Id. The Court of International Trade
then determined that “[t]here is nothing about incorporat-
ing into a backpack a compartment designed to contain
(and maintain the temperature of) beverages that makes
the backpack not a backpack.” Id. at 1346 (emphasis in
original). That is, “a ‘backpack’ is a ‘backpack,’ no matter
11 CAMELBAK PRODUCTS v. US
how . . . elaborate it may be.” Id. In essence, the Court of
International Trade regarded the hydration component of
the subject articles as an incidental feature and did not
consider its primary design or use as contributing to the
classification characteristics of the articles.
V
On appeal, CamelBak concedes that the cargo compo-
nent of the subject articles is prima facie classifiable as
“travel, sports and similar bags” of subheading 4202.92,
because it permits a consumer to carry some personal
effects, as defined in Additional U.S. Note 1. CamelBak
contends, however, that the subject articles cannot be
classified under 4202.92.30 by reference to GRI 1 alone,
because the “travel, sports and similar bags” provision
does not cover the articles as a whole (i.e., the subject
articles are not eo nomine backpacks). Rather, CamelBak
repeats its argument that the subject articles are made up
of two major components each of which is prima facie
classifiable under a different subheading, i.e., the cargo
component, which is prima facie classifiable under
4202.92.30 HTSUS and the hydration component, which
is prima facie classifiable under 4202.92.04 HTSUS.
Thus CamelBak argues that the Court of International
Trade erred when it failed to conduct a GRI 3(b) essential
character analysis.
The government, relying on the common meaning of
the term “backpack” and Additional U.S. Note 1 to Chap-
ter 42, responds that the Court of International Trade
correctly sustained Customs’ classification of the subject
articles under 4202.92.30 HTSUS as “travel, sports and
similar bags” pursuant to GRI 1 because backpacks, as a
whole, are designed to carry and organize a multitude of
personal effects, including water. Thus, the backpack
provision encompasses the subject articles in their en-
CAMELBAK PRODUCTS v. US 12
tirety. The government further contends that, as an eo
nomine provision, subheading 4202.92.30 covers all forms
of travel and sports bags including those that carry water
in a water bladder. Accordingly, the government contends
that a GRI 3(b) analysis is not triggered in this case
because the Court of International Trade correctly classi-
fied the subject articles pursuant to GRI 1.
VI
In this case, we are called upon to determine whether
the Court of International Trade correctly classified the
subject articles as “backpacks” falling within the “sports,
travel, and similar bags” eo nomine provision of subhead-
ing 4202.92.30, HTSUS. If the subject articles fall within
the scope of the eo nomine backpack provision then, under
Mita Copystar, GRI 1 mandates that the subject articles
be classified as “travel, sports and similar bags” and GRI
3 is not triggered. 5
Turning to the classification of the subject articles, we
note that although Casio sets forth the proposition that a
change in identity removes an article from an eo nomine
provision, it does not provide the analytical tools or fac-
tors for making that determination. The case law of this
and our predecessor court, however, provides several
analytical tools or factors we can use to assess whether
the subject articles are beyond the reach of the eo nomine
5
As a preliminary matter, we note that GRI 3(b), as
opposed to GRI 3(a), resolves the proper classification of
the subject articles if GRI 3 is triggered. Here, the cargo
component of the subject articles is not insulated (i.e.,
able to maintain the temperature of potable liquids dur-
ing their transport or temporary storage) and, therefore,
does not fall within the “insulated beverage bag” provision
of heading 4202, HTSUS. Thus the subject articles are
not prima facie classifiable as a whole as insulated bever-
age bags and GRI 3(a)’s rule of specificity does not apply.
13 CAMELBAK PRODUCTS v. US
backpack provision. These factors include the design of
the subject articles, see Casio, 73 F.3d at 1098 (affirming
the trial court’s finding that the subject articles—
synthesizers—were not beyond the scope of the eo nomine
“electronic musical instrument” tariff provision because
the additional features of the articles were “designed
primarily to make it easier for a musician to create mu-
sic”), and the use or function of the subject articles, see
Trans-Atlantic Co. v. United States, 471 F.2d 1397, 1399
(CCPA 1973) (“[W]e think that the primary function of the
imported article should govern classification.”); United
States v. Quon Quon Co., 46 C.C.P.A. 70, 72 (1959) (“use
cannot be ignored in determining whether an article falls
within an eo nomine tariff provision”); see also BASF
Wyandotte Corp. v. United States, 855 F.2d 852, 853 (Fed.
Cir. 1988) (citing Quon Quon for the proposition that “the
use of a product may be considered in determining the
classification of that article”). The design and
use/function of the subject articles are important consid-
erations, as our predecessor court observed in Quon Quon,
when reviewing the classification of certain baskets:
While unhesitatingly granting the truth of the
contention that “baskets” in the tariff act provides
for baskets “eo nomine,” this does not help us in
the least to decide whether the imported articles
are baskets [and not furniture]. We are not so
trusting of our own notions of what things are as
to be willing to ignore the purpose for which they
were designed and made and the use to which
they were actually put. Of all things most likely
to help in the determination of the identity of a
manufactured article, beyond the appearance fac-
tors of size, shape, construction and the like, use
is of paramount importance. To hold otherwise
would logically require the trial court to rule out
CAMELBAK PRODUCTS v. US 14
evidence of what things actually are every time
the [Customs] collector thinks an article, as he
sees it, is specifically named in the tariff act.
46 C.C.P.A. at 73 (emphasis in original).
Several commercial factors also guide the court’s as-
sessment of whether articles fall within the scope of an eo
nomine provision, including how the subject articles are
regarded in commerce, see Servo-Tek Prods. Co., Inc. v.
United States, 416 F.2d 1398, 1400 (CCPA 1969) (conclud-
ing that the subject articles were not regarded in com-
merce as merely “motors” and should not be classified as
such), how the subject articles are described in sales and
marketing literature, see Fairchild Camera & Instrument
Corp. v. United States, 53 C.C.P.A. 122, 124 (1966) (classi-
fying the subject articles as “cameras” based, in part, on
the fact that they were consistently described as “cam-
eras” in sales literature), and whether the additional
component is a substantial or incidental part of the whole
product, cf. United States v. N.Y. Merch. Co., 435 F.2d
1315 (CCPA 1970).
Applying the above factors to the present case, we
conclude that the Court of International Trade clearly
erred in finding that the subject articles are nothing more
than improved backpacks. It is correct that “travel, sports
and similar bags” are eo nomine and include all forms of
backpacks. The subject articles, however, “possess[ ]
features substantially in excess of those within the com-
mon meaning” of the term backpack as defined by the
Court of International Trade, which the court failed to
regard. Casio, 73 F.3d at 1098 (emphasis in original).
Thus, they cannot be classified eo nomine as conventional
backpacks. At most, the cargo component is classifiable
as a conventional backpack because it is designed and
used to carry personal effects. It is undisputed, however,
15 CAMELBAK PRODUCTS v. US
that the hydration component has a different design and
primary use: to provide a temperature-maintained, con-
tinuous source of hands-free hydration to a user while
engaged in a sporting event or recreational activity.
When using the subject articles, the user can drink the
beverage at will, without removing the article, thereby
minimizing any disruption in activity. As Wesley Watson,
CamelBak’s Vice President of Global Sourcing and Distri-
bution testified, CamelBak’s “core product is manufac-
tured around hydration; allowing hydration to be
provided to an active user in the best way and the easiest
way. Hands-free hydration is a staple or a motto of our
organization, and we design products specifically for
markets that allow you to drink while you’re using, while
you're doing an activity.” Indeed, the subject articles exist
“to provide a hands-free . . . way to drink” and it was error
for the Court of International Trade to discount the
hydration component and characterize it as a mere fea-
ture without considering the subject articles’ primary
design and use.
That there is a substantial difference in identity of the
subject articles from a conventional backpack is further
demonstrated by the commercial factors, such as the
higher prices CamelBak charges and consumers pay for
the subject articles as compared to conventional back-
packs, the placement of the subject articles in retail
catalogues and stores in a “hydration pack” section rather
than a “backpack” section, and CamelBak’s reference to
the subject articles as “hydration packs” in its literature
and marketing materials. These factors demonstrate that
subject articles are commercially known, advertised and
sold as “hydration packs,” as opposed to backpacks, and
that consumers purchase them for different reasons than
they purchase conventional backpacks.
CAMELBAK PRODUCTS v. US 16
Finally, the hydration component of the subject arti-
cles is not merely incidental to the cargo component but,
instead, provides the articles with a unique identity and
use that removes them from the scope of the eo nomine
backpack provision. That is, the subject articles are not
merely an improvement over the conventional backpack
as the Court of International Trade concluded. Thus, the
subject articles are not classifiable as a whole pursuant to
GRI 1.
Rather, they are composite goods made up of two
components, which lack a single specific classification
under HTSUS (i.e., there is no HTSUS provision for
combination backpacks and hydration packs). Each
component of the subject articles is classifiable under a
separate subheading of 4202.92 HTSUS—the cargo com-
ponent is classifiable as a “travel, sports, or similar bag[ ]”
under 4202.92.30 HTSUS, and the hydration component
is classifiable as an “insulated food and beverage bag”
under 4202.92.04 (or 4202.92.08) HTSUS. Accordingly,
GRI 3(b) controls the classification of the subject articles.
VII
Regarding the application of GRI 3(b), CamelBak con-
tends that there are no factual disputes to resolve with
respect to the essential character of the subject articles
because the parties agree on the basic nature of the
products and the government failed to refute the evidence
CamelBak adduced in support of its summary judgment
motion. Thus, argues CamelBak, a remand to the Court
of International Trade is not necessary and this court can
classify the subject articles pursuant to GRI 3(b). We are
not persuaded by CamelBak’s argument.
First, we note that the essential character of the sub-
ject articles is a question of fact. See Home Depot, 491
F.3d at 1337 (“the application of this [essential character]
17 CAMELBAK PRODUCTS v. US
test requires a fact-intensive analysis”); Pillsbury Co. v.
United States, 431 F.3d 1377, 1380 (Fed. Cir. 2005) (“Pre-
dominance [in the context of GRI 3(b)] is a factual deter-
mination . . . .”). Second, contrary to CamelBak’s
argument, the parties dispute the essential character of
the subject articles. Indeed, the government contends
that CamelBak cannot prevail on a GRI 3(b) analysis
because it failed to demonstrate by competent evidence
that any component of the subject articles is classifiable
as an insulated beverage bag. 6 Therefore, remand to the
Court of International Trade to resolve the GRI 3(b) issue
in the first instance is appropriate.
VIII
For the foregoing reasons, we reverse the Court of In-
ternational Trade’s grant of summary judgment to the
government and remand the case to the Court of Interna-
tional Trade for further proceedings.
REVERSED AND REMANDED
6
Whether or not the hydration component of the
subject articles is insulated (i.e., maintains the tempera-
ture of potable liquids during their transport or tempo-
rary storage) is the subject of a motion in limine pending
in the Court of International Trade.
United States Court of Appeals
for the Federal Circuit
__________________________
CAMELBAK PRODUCTS, LLC,
(SUCCESSOR-IN-INTEREST TO CAMELBAK PRODUCTS,
INC.),
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
__________________________
2010-1420
__________________________
Appeal from the United States Court of International
Trade in Case No. 05-CV-0249, Judge Delissa A. Ridgway.
__________________________
BRYSON, Circuit Judge, dissenting.
I respectfully dissent. The Court of International
Trade upheld Customs’ classification of the goods at issue
in this case as “travel, sports and similar bags” within
HTSUS 4202.92.30. That determination should be af-
firmed. Additional Note 1 to chapter 42 of the HTSUS
tells us that this category includes goods “of a kind de-
signed for carrying clothing and other personal effects
during travel, including backpacks and shopping bags[.]”
As an eo nomine provision, that subheading encompasses
“all forms of the named article.” Carl Zeiss, Inc. v. United
States, 195 F.3d 1375, 1379 (Fed. Cir. 1999). The fact
CAMELBAK PRODUCTS v. US 2
that an article features an improvement does not remove
it from the statutory class. See Casio, Inc. v. United
States, 73 F.3d 1095, 1098-99 (Fed. Cir. 1996). To be
sure, there comes a point at which an “improvement”
amounts to such a fundamental change in an item that
the item cannot fairly be classified as a member of the eo
nomine class. The majority concludes that the line has
been crossed in this case. The Court of International
Trade came to a contrary conclusion, and in my view that
court’s highly factual determination cannot be said to be
clearly erroneous. See id. at 1098.
In holding that the products at issue are not back-
packs, the majority relies heavily on its determination
that the subject goods are sold for higher prices than
traditional backpacks. To support its conclusion, the
majority cites an article that appears in a magazine that
is directed toward runners and as well as several retail
catalogs that were admitted into evidence. The prices
listed for backpacks that include a hydration component
and for backpacks without that feature overlap consid-
erably, and the record does not indicate that the price of
backpacks having a hydration component is so out of line
with the price of backpacks lacking that feature as to
suggest clear error in the trial court’s finding.
While it is true that the way particular products are
marketed can affect whether they should be viewed as
being members of an eo nomine class, the evidence in the
record on that score is mixed. CamelBak’s Vice President
for Marketing and Product Management stated in his
deposition testimony that product placement varies from
retailer to retailer. He explained that many retailers
place cycling-oriented articles with other cycling-oriented
hydration products. But he also stated that some retail-
3 CAMELBAK PRODUCTS v. US
ers sell the subject articles alongside backpacks not
having a hydration component:
Q: [T]he hydration systems might be sold right
alongside backpacks or packs that don’t have
hydration systems in them?
A: They will be sold along side. Although in
most of our retailers, there is a specific sec-
tion in the department for, say, outdoor hy-
dration systems. So there will be a day pack
wall as the technical term, and there will be
outdoor day pack hydration systems, and
then there will be other packs that are not
hydration systems.
That testimony lends support to the trial court’s finding
that the subject articles are properly classified in the eo
nomine category for backpacks.
The majority points out that in its promotional and
sales literature CamelBak refers to the subject articles as
“hydration packs.” That point, however, does not carry
much probative force. It is not surprising that CamelBak
has selected the adjective “hydration” to modify “pack,”
since the subject articles feature a useful and desirable
hydration functionality not found in all backpacks. As is
the case with any improved good, consumers who choose
to purchase a backpack including a hydration component
presumably desire just that: a backpack improved by the
addition of a hands-free hydration system. A backpack
equipped with a flashing light for use by pedestrians or
cyclists using dark streets at night might be referred to as
a “safety light backpack,” and be sold to consumers look-
ing for the safety light feature, but that improvement
would not be a sufficient change to take such a backpack
CAMELBAK PRODUCTS v. US 4
out of the eo nomine category for backpacks. Moreover,
the evidence does not show that there is a rigid distinc-
tion between the terms backpack, daypack, and hydration
pack. For instance, the article from the running maga-
zine compares the price and functionality of backpacks,
daypacks, and hydration packs. And in its promotional
material, CamelBak refers to one of its products as a
daypack, suggesting that even the importer believes that
a hydration pack can also be a daypack.
Importantly, CamelBak’s promotional literature does
not emphasize only the hydration component of its packs.
It also touts the packs’ storage and cargo-carrying func-
tionality. CamelBak’s 2003 catalog tells consumers that
the “Mule” product “integrates increased cargo capacity”
with CamelBak’s most recent developments in hands-free
hydration technology. CamelBak describes the “Hawg”
product as a “Technical Cycling Pack.” The “Hawg,”
according to CamelBak, is “[b]uilt for haulin’ down a trail”
and “holds 100 oz of water[] and enough gear, clothing,
and food for extended rides.” And the “SnowDAWG,”
which CamelBak describes as a “Versatile Winter Day
Pack,” is said to allow its purchasers to “Haul it all! Stuff
in an extra layer, a pair of mittens, and a mid-morning
snack, plus enough water for your snowshoeing, cross-
country skiing, or sledding adventure.”
In light of the record before it, the trial court did not
clearly err in concluding that the subject imports are
improved backpacks, classifiable in their entirety under
subheading 4202.92.30 of the HTSUS. Because GRI 1
controls this case, there is no need to remand for a GRI
3(b) “essential character” analysis. I would affirm the
judgment of the Court of International Trade.