Slip Op. 07 - 136
UNITED STATES COURT OF INTERNATIONAL TRADE
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DECKERS CORPORATION, :
Plaintiff, :
v. : Court No. 02-00674
THE UNITED STATES, :
Defendant. :
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Opinion
[Upon trial as to classification of Teva®
sandals, judgment for the defendant.]
Decided: September 5, 2007
Rode & Qualey (Patrick D. Gill, Michael S. O'Rourke and
William J. Maloney) for the plaintiff.
Peter D. Keisler, Assistant Attorney General; Barbara S.
Williams, Attorney in Charge, International Trade Field Office,
Commercial Litigation Branch, Civil Division, U.S. Department of
Justice (James A. Curley and Marcella Powell); and Office of
Assistant Chief Counsel, U.S. Customs and Border Protection
(Michael W. Heydrich), of counsel, for the defendant.
AQUILINO, Senior Judge: As reported in slip opinion
05-159, 29 CIT ___, 414 F.Supp.2d 1252 (2005), filed herein,
familiarity with which is presumed, this court could not and
therefore did not grant defendant's motion for summary judgment as
to its classification of three models of Teva® sandals that entered
Court No. 02-00674 Page 2
the United States through the port of Los Angeles, California. As
stated, the genuine issue of material fact that required trial was
the opinion set forth in Customs Ruling HQ 963395 (April 2, 2002)1
that the openness2 of those models leaves them unsuitable for
activities implied by the exemplars of subheading 6404.11 of the
Harmonized Tariff Schedule of the United States ("HTSUS"), namely,
"tennis shoes, basketball shoes, gym shoes, training shoes and the
like". See 29 CIT at ___, 414 F.Supp.2d at 1262. Thereupon trial
commenced in California and continued and concluded in New York.
I
The evidence adduced and now on the record clearly
attenuates that agency opinion but does not extend so far as to
recommend that either the Pretty Rugged Sport Sandal, plaintiff's
exhibit 1, the Terradactyl Sport Sandal, plaintiff's exhibit 2, or
the Aquadactyl Sport Sandal, plaintiff's exhibit 3, be donned for
tennis, basketball or gym, or even training, at least on or in the
kind of confines those first three statutory adjectives imply.
Rather, the plaintiff has proven beyond any reasonable doubt their
design and development for strenuous human outdoor activity, often
1
Defendant's Exhibit E, pages 3-4, is quoted at 29 CIT at
and 414 F.Supp.2d at 1260.
2
See generally Plaintiff's U.S. Patent No. 4,793,075, p. 2,
FIG 2, 29 CIT at , 414 F.Supp.2d at 1256.
Court No. 02-00674 Page 3
near or in bodies of water, including "adventure racing"3, beach
and trail running, "canyoneering"4, hiking, jogging, mountain
biking, power- and sail-boating, sport fishing5, swimming,
triathlon, and "white water" kayaking and rafting.
Volume 10, page 408 of The New Encyclopaedia Britannica
(1986) dates the type of footwear by humans known as sandals to
2000 BC (in Egypt), but almost 4,000 years passed before one Mark
3
California trial transcript ("CalTr."), p. 235. Adventure
racing is "through all different natural mediums" [id. at 238],
very much like a triathlon with a team; but the sports
they go through . . . where they're climbing and then
they're all of a sudden rafting and then . . . running.
. . . So this type of shoe . . . is something where . . .
the athlete is capable of staying in one piece of
footwear, going in and out of the water, running,
climbing, and rafting all . . . in one fell swoop.
Id. at 236-37.
4
Ibid. at 99.
5
According to unrefuted testimony at trial, there are
many, many types of fishing, and they've all become
competitive now[,] from catfish fishing in the
Mississippi to . . . large sailfish fishing off the coast
of Hawaii and Costa Rica; and these shoes are used for
the whole gamut . . .. Fly fishermen use them . . .
instead of waders in creeks that are accommodating
temperaturewise. They are used on boats all over the
world for competitive fishing.
Ibid. at 239. See also New York trial transcript ("NYTr.") 1, pp.
9-13, 27-29.
Court No. 02-00674 Page 4
Thatcher designed and successfully patented the "universal"
strapping system affixed to each of the Teva®s at bar and described
as follows:
A sandal with an elongated sole configured to the profile
of a human footprint with a toe end and a heel end,
employs a toe strap connected at two anchor points to
grip the full part of the user's foot and a heel strap
connected at two anchor points to grip the ankle of the
user's foot, with a lateral strap connected between the
toe strap and the heel strap, which is located on the
outside sole parallel to its surface so it is operable to
stabilize the other straps and to maintain essentially
constant tensions in the individual straps as the sole
flexes with the toe and heel straps being infinitely
adjustable so the wearer can cinch the sandal to its foot
by adjusting said straps in a manner that will not be
dislodged during rigorous activity.6
Plaintiff's patent (and the trial record into which it has been
read) summarizes the invention as a
sports sandal, including an elongated sole, configured to
the profile of the human foot having a toe end and a heel
end, a tether-strap system connected to the top of said
sole for retaining a human foot, the tether-strap system
having a toe-strap system extending transversally from
the sole adjacent to the toe end and a heel-strap system
connected to the sole at the heel end for encircling the
user's ankle, and a lateral strap connected between said
toe-strap system and said heel-strap system with the
lateral strap located parallel to and along the outer
edge of the sole so flexing of said sole will not
appreciably change the tension in said tether-strap
system.7
6
CalTr. at 38-39, quoting from plaintiff's patent.
7
Id. at 39-40.
Court No. 02-00674 Page 5
A
Plaintiff’s merchandise was classified by Customs under
HTSUS subheading 6404.19.35. Its protest thereof, and subsequent
pleadings based thereon herein, have taken the position that "the
most specific description" of its goods within the meaning of
General Rule of Interpretation 3(a) is:
6404.11 Sports footwear; tennis shoes, basketball shoes, gym
shoes, training shoes and the like:
* * *
Other:
* * *
6404.11.80 Valued over $6.50 but not over
$12/pair . . . . . . . . . . .
As recited in slip opinion 05-159, the definition of
"sports footwear" found in Subheading Note 1 to HTSUS chapter 64
precludes classification of plaintiff’s sandals as such. See 29
CIT at ___, 414 F.Supp.2d at 1258; Pretrial Order, Schedule C,
para. 5. Whereupon the plaintiff continues to press its view that
the term
"tennis shoes, basketball shoes, gym shoes, training
shoes and the like" is "defined by Additional U.S. Note
2 to Chapter 64 as all ‘athletic footwear’ subject to
certain exceptions which the parties agree do not apply
to the Teva® sport sandals".[8] . . .
8
29 CIT at ___, 414 F.Supp.2d at 1257, quoting plaintiff’s
brief in opposition to defendant’s motion for summary judgment, pp.
2-3 (emphasis in original).
Court No. 02-00674 Page 6
Congress eliminated the need to make subjective
determinations as to whether shoes other than the named
exemplars are "like" the named exemplars. It laid this
issue to rest by putting the named exemplars and any
shoes like them in one defining basket: "athletic
footwear." Hence, there is no need to make the
subjective and contentious determinations of what is
"like" as suggested by defendant since Congress has
defined the entire term including the exemplars and the
term "and the like" as meaning athletic footwear.9
Upon initial analysis, the court considered this attempt to
extrapolate from that additional note 2's language10 congressional
intent to substitute, for purposes of interpreting subheading
6404.11.80, "athletic footwear" for the list of exemplars and their
like to be "tenuous." 29 CIT at ___, 414 F.Supp.2d at 1257.
Nonetheless, trial ensued at which the plaintiff bore
its burden of proof with regard to its factual averments, e.g.:
2. The imported merchandise is sold as athletic foot-
wear.
3. Merchandise in issue is used for sporting and
athletic purposes including, but not limited to,
whitewater rafting.
4. The imported merchandise is sold under the
registered trademark Teva® and is patented in the
United States Patent Office (Patent #4,793,075),
described as "SPORT SANDAL FOR ACTIVE WEAR."
5. Teva® sport sandals are conducive to fast footwork
associated with athletic activities.
9
Id.
10
See id.
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6. The imported footwear is the type commonly referred
to by the footwear industry and consumers as sport
sandals or athletic sandals.
7. Sport sandals are recognized as athletic footwear
by the footwear industry.
29 CIT at ___, 414 F.Supp.2d at 1255. Also:
11. The imported merchandise is used in athletic
activities where, prior to the invention of the
sports sandal, wearers had no option but to use
closed upper styled tennis shoes, basketball shoes,
gym shoes, training shoes and other types of
athletic footwear.
12. For certain athletic activities, the imported
merchandise is preferred over any of the closed
upper styled exemplars.
13. The openness of the uppers of the imported
merchandise does not create significant drawbacks
to athletic use, but rather results in an improved,
more usable athletic shoe.
14. The imported footwear does not allow the wearer’s
foot to move or slide in a manner inconsistent with
athletic use.
15. The design of the imported merchandise allows for
quick and easy removal of any foreign matter that
may be introduced while participating in athletic
activities.
16. The imported merchandise is favored by users over
the exemplars because the time needed to remove
foreign objects or to tighten or adjust Teva®
sports sandals is significantly less than the same
activities performed on closed upper styled tennis
shoes, basketball shoes, gym shoes or training
shoes.
17. The performance and comfort of the imported
merchandise in athletic use under conditions, e.g.,
weather and terrain, involving moisture is superior
to that of closed upper styled tennis shoes,
basketball shoes, gym shoes and training shoes.
Court No. 02-00674 Page 8
18. The imported merchandise has features that are also
found in closed upper styled tennis shoes,
basketball shoes, gym shoes and training shoes.
Pretrial Order, Schedule C-1.
B
Given the evidence now on the record, plaintiff’s able
counsel have filed a reply to defendant’s post-trial brief. Among
other things, they request the court to revisit their "tenuous"
conclusion, supra, to wit:
. . . To [the] extent that . . . link is tenuous, we
believe the record in this case closes the loop.
Plaintiff’s proof that the imported articles are athletic
footwear is tantamount to proving that the imported
articles are ejusdem generis with the named exemplars in
that their primary purpose is for use in athletic games
or for athletic purposes. Without Note 2, there can be
no question that the issues in this case would have to be
resolved solely by reference to the rule of . . . ejusdem
generis. However, Note 2 must be given some meaning in
its attempt to define the term athletic footwear. If the
sole criterion to resolve this issue was resort to the
rule of ejusdem generis, Congress would not have had to
state that the term "covers athletic footwear." Nor can
it be said that Note 2 was inserted solely for the
purpose of modifying the principal use requirement of GRI
Additional U.S. Rule of Interpretation 1(a) to the HTSUS
or the elimination of "sports footwear" from the
provision. If that were the case, Note 2 could have
simply said that "heading 6404.11.80, HTSUS, excludes
‘sports footwear’ including footwear otherwise provided
therein, whether or not principally used for athletic
games or purposes." Instead, Congress deliberately used
the entire term, "tennis shoes, basketball shoes, gym
shoes, training shoes and the like" and stated that it
covers athletic footwear. To ignore the defining proviso
that the term covers athletic footwear would be to assume
that Congress did a vain and unnecessary thing in using
Court No. 02-00674 Page 9
the term athletic footwear to define the entire term in
subheading 6404.11.80, HTSUS, including the term "and the
like." Even if Congress could have drafted Note 2 more
clearly, "the courts must not impute to a legislative
body the doing of a useless and vain thing unless the
written words will not permit of a construction which
will give them a different effect." Fensterer & Voss
(Inc.) v. United States, 13 Ct.Cust.Appls 105, T.D. 39734
(1924).
Plaintiff’s Reply to Defendant’s Post Trial Brief, pp. 14-15.
Counsel add that, in a case of statutory interpretation,
the meaning of terms is never completely free of doubt. Id. at 15.
While this certainly can be true, in this particular action there
is and can be no doubt that plaintiff’s goods are "sandals", as
that form of human footwear has been understood for millennia.
Indeed, counsel do not and have not referred to plaintiff’s
merchandise otherwise. On the other hand, the form of footwear
specified in that part of the HTSUS subheading, which the plaintiff
prefers, is "shoe"11. Again, there is and can be little doubt that
that term does not cover the Teva®s at issue. Compare, e.g.,
Defendant’s Exhibit B-1, -2, -3, -4 and NYTr. 2, pp. 13-23, with
Plaintiff’s Exhibits 1, 2, 3 and Defendant’s Exhibit N. Moreover,
if plaintiff’s patent 4,793,075, Exhibit 4 herein, genuinely
11
Definitions of the two forms are found in defendant’s
exhibit D (Rossi, The Complete Footwear Dictionary, pp. 117, 122
(1994)).
Court No. 02-00674 Page 10
satisfies 35 U.S.C. §10312, its nonobvious subject matter post-dates
(Dec. 27, 1988) iteration of HTSUS subheading 6404.11 in USITC Pub.
2030, p. 64-14 (March 25, 1988). While it may well be, as this
matter has discovered, that forms of human athletic activity have
engendered more-propitious types of footwear, the law governing
their classification has yet to follow suit. That it could (or
even should) is, of course, beyond the authority of this court.
II
This court’s jurisdiction extends only to deciding
whether plaintiff’s goods have been lawfully classified upon entry
by Customs. In hereby concluding that they have been, the court
will enter final judgment to that effect on behalf of the
defendant.
Decided: New York, New York
September 5, 2007
/s/ Thomas J. Aquilino, Jr.
Senior Judge
12
Cf. KSR Int’l Co. v. Teleflex Inc., 550 U.S. ___, 127 S.Ct.
1727 (2007).
J U D G M E N T
UNITED STATES COURT OF INTERNATIONAL TRADE
Thomas J. Aquilino, Jr., Senior Judge
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DECKERS CORPORATION, :
Plaintiff, :
v. : Court No. 02-00674
THE UNITED STATES, :
Defendant. :
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This test case within the meaning of USCIT Rule 84(b)
having been duly submitted for decision; and the court, after due
deliberation, having rendered decisions herein; Now therefore, in
conformity with said decisions, it is
ORDERED, ADJUDGED and DECREED that the decision of the
United States Customs Service to classify the merchandise at issue
under HTSUS subheading 6404.19.35 (1998) be, and it hereby is,
affirmed; and it is further
ORDERED, ADJUDGED and DECREED that this test case be, and
it hereby is, dismissed.
Dated: New York, New York
September 5, 2007
/s/ Thomas J. Aquilino, Jr.
Senior Judge