Dependable Packaging Solutions, Inc. v. United States , 757 F.3d 1374 ( 2014 )

United States Court of Appeals
for the Federal Circuit
______________________
DEPENDABLE PACKAGING SOLUTIONS, INC.,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
______________________
2013-1300
______________________
Appeal from the United States Court of International
Trade in No. 10-CV-0330, Judge Richard K. Eaton.
______________________
Decided: July 9, 2014
______________________
PETER S. HERRICK, Peter S. Herrick, P.A., of Miami,
Florida, argued for plaintiff-appellant.
EDWARD F. KENNY, Trial Attorney, International
Trade Field Office, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of New
York, New York, argued for defendant-appellee. With him
on the brief were STUART F. DELERY, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and AMY M.
RUBIN, Acting Assistant Director, International Trade
Field Office. Of counsel on the brief was SHERYL A.
FRENCH, Office of Assistant Chief Counsel, United States
Customs and Border Protection, of New York, New York.
2 DEPENDABLE PACKAGING v. US
______________________
Before WALLACH, MAYER, and CHEN, Circuit Judges.
WALLACH, Circuit Judge.
Before the court is Dependable Packaging Solutions,
Inc.’s (“Dependable”) appeal regarding the classification of
certain types of glass merchandise. For the reasons set
forth below, the holding of the Court of International
Trade (“CIT”) is affirmed.
BACKGROUND
Dependable imports and distributes packing, janitori-
al, floral, and office supplies, and certain glass items. On
May 29, 2010, Dependable imported certain glass items
from the People’s Republic of China and identified them
on their respective commercial invoices as “Generic Bud
Vases” for the smaller (“bud vases”) and “Generic Trum-
pet Vases” (“trumpet vases”) for the larger (collectively,
“the vases” or “the merchandise”). Both types of vases
have an inexpensive look and visible seams. When im-
ported, the bud vases were valued at $0.30 or less and the
trumpet vases at more than $0.30 but no greater than
$3.00.
After importing the vases, Dependable sells them to
mass-market flower-packing houses that fill them with
water and flowers. The packing houses then ship the
flower-packed vases to supermarkets or similar retailers,
where the vase and flower combinations are displayed
and sold as a single unit. Similar vases are sold empty at
retail. Dependable’s vases are not sold empty at retail,
though they can be reused.
When the vases were imported, Dependable classified
them under the Harmonized Tariff Schedule of the United
DEPENDABLE PACKAGING v. US 3
States (“HTSUS”) 1 7018.90.50. 2 At liquidation, U.S.
Customs and Border Protection (“Customs”) classified the
bud vases under HTSUS 7013.99.404 and the trumpet
vases under HTSUS 7013.99.50.5. The vases were thus
classified under heading 7013, which provides for “Glass-
ware of a kind used for . . . indoor decoration . . . (other
than that of heading 7010 or 7018).” Specifically, heading
7013 provides, in relevant part:
7013 Glassware of a kind used for table, kitch-
en, toilet, office, indoor decoration or similar pur-
poses (other than that of heading 7010 or 7018):
Other glassware
7013.99 Other . . .
7013.99.40 Other:
Valued not over $0.30
each . . . 38%
7013.99.50 Valued over $0.30 but not over
$3 each . . . 30%
(emphasis added).
Dependable timely protested but Customs failed to act
within thirty days, resulting in a deemed denial. After
the assessed duties were paid, Dependable filed this
action in the CIT, abandoning its entered classification
under heading 7018.90.50 and asserting both vases
should be classified under HTSUS heading 7010, which
1 All references to the HTSUS refer to the 2010 edi-
tion.
2 HTSUS 7018.90.50 covers: “Glass beads, imitation
pearls, imitation precious or semiprecious stones and
similar glass small wares and articles thereof other than
imitation jewelry; glass eyes other than prosthetic arti-
cles; statuettes and other ornaments of lamp-worked
glass, other than imitation jewelry; glass microspheres
not exceeding 1 mm in diameter: . . . Other: . . . Other.”
4 DEPENDABLE PACKAGING v. US
includes “containers, of glass, of a kind used for the con-
veyance or packing of goods.” In particular, heading 7010
states, in relevant part:
7010 Carboys, bottles, flasks, jars, pots, vials,
ampules and other containers, of glass, of
a kind used for the conveyance or packing
of goods; preserving jars of glass; stoppers,
lids and other closures, of glass: . . .
7010.90 Other . . .
7010.90.30 Other . . . 5.2%.
Dependable contended its vases should be classified under
HTSUS 7010.90.30.
After reviewing both competing headings and con-
ducting a Carborundum analysis, 3 the CIT determined “a
reasonable jury could only conclude that the vases here
are commercially fungible with other inexpensive clear
glass vases whose principal use is decorative, rather than
with glass packing containers.” Dependable Packaging
Solutions, Inc. v. United States, No. 10-0330, 2013 WL
646328, at *9 (Ct. Int’l Trade Feb. 20, 2013). The CIT
accordingly held Customs’ classification was correct and
granted summary judgment in favor of the Government.
Dependable timely appeals. This court has jurisdiction
pursuant to 28 U.S.C. § 1295(a)(5) (2012).
3 When, as here, the CIT performs a principal use
analysis to determine the proper heading for the imported
merchandise, the CIT analyzes several factors, commonly
referred to as the “Carborundum factors,” in order to
determine which goods are “commercially fungible with
the imported goods.” Aromont USA, Inc. v. United States,
671 F.3d 1310, 1312–13 (Fed. Cir. 2012).
DEPENDABLE PACKAGING v. US 5
DISCUSSION
I. Standard of Review
This court reviews the CIT’s grant of summary judg-
ment on tariff classifications de novo. Lemans Corp. v.
United States, 660 F.3d 1311, 1315 (Fed. Cir. 2011);
Cummins Inc. v. United States, 454 F.3d 1361, 1363 (Fed.
Cir. 2006). In assessing Customs’ classification determi-
nations, this court employs the two-step analysis used by
the CIT: (1) ascertaining “the proper meaning of the tariff
provisions, which is a question of law reviewed de novo”;
and (2) determining “whether merchandise falls within a
particular heading, which is a question of fact we review
only for clear error.” Lemans, 660 F.3d at 1315 (citing
Cummins, 454 F.3d at 1363). However, “[w]here . . . the
nature of the merchandise is undisputed, the inquiry
collapses into a question of law we review de novo.” Id.
“Here, there is no genuine dispute as to ‘exactly what the
merchandise is’ or as to its actual use.” Dependable
Packaging, 2013 WL 646328, at *2 (citing Bausch &
Lomb, Inc. v. United States, 148 F.3d 1363, 1365 (Fed.
Cir. 1998)). Although the parties disagreed as “to the
‘principal use’ of the vases,” the CIT held this was “not a
material dispute precluding summary judgment.” Id.
II. Legal Framework
A. Classification Pursuant to the HTSUS
The HTSUS is composed of classification headings,
each of which has one or more subheadings. Deckers
Outdoor Corp. v. United States, 714 F.3d 1363, 1366 (Fed.
Cir. 2013). “The headings contain ‘general categories of
merchandise,’ whereas ‘the subheadings provide a more
particularized segregation of the goods within each cate-
gory.’” Id. (quoting Orlando Food Corp. v. United States,
140 F.3d 1437, 1439 (Fed. Cir. 1998)). Along with the
headings and subheadings, which are enumerated in
chapters 1 through 99 of the HTSUS (each of which has
6 DEPENDABLE PACKAGING v. US
its own section and chapter notes), the HTSUS statute
also contains the “General Notes,” the “General Rules of
Interpretation” (“GRI”), the “Additional United States
Rules of Interpretation” (“ARI”), and various appendices
for particular categories of goods. See Baxter Healthcare
Corp. of P.R. v. United States, 182 F.3d 1333, 1337 (Fed.
Cir. 1999) (citing 19 U.S.C. § 3004(a) (1994)). The classi-
fication of merchandise is governed by the GRIs and the
ARIs, which are applied in numerical order. BenQ Am.
Corp. v. United States, 646 F.3d 1371, 1376 (Fed. Cir.
2011). The World Customs Organization’s “Explanatory
Notes,” which accompany each chapter of the HTSUS, are
“not legally binding, are ‘persuasive[,]’ and are ‘generally
indicative’ of the proper interpretation of the tariff provi-
sion.” Lemans, 660 F.3d at 1316 (quoting Drygel, Inc. v.
United States, 541 F.3d 1129, 1134 (Fed. Cir. 2008)).
The classification analysis always begins with GRI 1,
which directs that “classification shall be determined
according to the terms of the headings and any relative
section or chapter notes.” HTSUS GRI 1 (emphasis
added); see Orlando Food, 140 F.3d at 1440 (“[A] court
first construes the language of the heading, and any
section or chapter notes in question, to determine whether
the product at issue is classifiable under the heading.”).
“Absent contrary legislative intent, HTSUS terms are to
be construed according to their common and commercial
meanings, which are presumed to be the same.” Carl
Zeiss, Inc. v. United States, 195 F.3d 1375, 1379 (Fed. Cir.
1999) (citing Simod Am. Corp. v. United States, 872 F.2d
1572, 1576 (Fed. Cir. 1989)). Pursuant to GRI 1, the
possible headings are to be evaluated without reference to
their subheadings, which cannot be used to expand the
scope of their respective headings. Orlando Food, 140
F.3d at 1440 (“Only after determining that a product is
classifiable under the heading should the court look to the
subheadings to find the correct classification for the
merchandise. . . . [W]hen determining which heading is
DEPENDABLE PACKAGING v. US 7
. . . more appropriate for classification, a court should
compare only the language of the headings and not the
language of the subheadings.”); EOS of N. Am., Inc. v.
United States, 911 F. Supp. 2d 1311, 1327–28 (Ct. Int’l
Trade 2013). Finally, if the proper heading can be deter-
mined under GRI 1, the court is not to look to the subse-
quent GRIs. See CamelBak Prods., LLC v. United States,
649 F.3d 1361, 1364 (Fed. Cir. 2011) (citing Mita Copystar
Am. v. United States, 160 F.3d 710, 712 (Fed. Cir. 1998))
(“We apply GRI 1 as a substantive rule of interpretation,
such that when an imported article is described in whole
by a single classification heading or subheading, then that
single classification applies, and the succeeding GRIs are
inoperative.”).
All the relevant HTSUS headings in this case are
principal use provisions, 4 which are governed by ARI 1(a).
“[A] tariff classification controlled by use (other than
actual use) is to be determined in accordance with the use
in the United States at, or immediately prior to, the date
of importation, of goods of that class or kind to which the
imported goods belong, and the controlling use is the
principal use.” ARI 1(a); see also Primal Lite, Inc. v.
United States, 182 F.3d 1362, 1363 (Fed. Cir. 1999). This
court has explained that the purpose of “principal use”
provisions “is to classify particular merchandise according
to the ordinary use of such merchandise, even though
particular imported goods may be put to some atypical
use.” Primal Lite, Inc., 182 F.3d at 1364. Thus, for
example, “a classification covering vehicles principally
used for automobile racing would cover a race car, even if
the particular imported car was actually used solely in an
advertising display.” Id.
4 The parties correctly agree that the competing
headings, 7010 and 7013, are principal use provisions.
8 DEPENDABLE PACKAGING v. US
B. The Competing Headings
The parties are in agreement that the vases should be
classified under HTSUS chapter 70 (“Glass and glass-
ware”), but disagree about the appropriate heading.
Currently the subject merchandise is classified under
heading 7013, which provides for “Glassware of a kind
used for table, kitchen, toilet, office, indoor decoration or
similar purposes (other than that of heading 7010 or
7018).” Dependable argues the vases should be classified
under heading 7010, which includes “containers, of glass,
of a kind used for the conveyance or packing of goods.”
III. The Scope of Heading 7013
The Explanatory Notes to HTSUS 7013 specifically
identify “vases” as an example of “glassware for indoor
decoration and other glassware covered by heading 7013.”
See Explanatory Notes to the Harmonized Commodity
Description and Coding Sys., 70.13, 4th ed. (2007) (“Ex-
planatory Notes”) (“This heading covers . . . [g]lassware
for indoor decoration and other glassware . . . such as
vases.”). The CIT concluded Dependable’s vases were
“vases” within the scope of 7013, in part by relying on
dictionary definitions of the word “vase.” Dependable
Packaging, 2013 WL 646328, at *4–5 & n.12 (“‘An open
container, as of glass or porcelain, used for holding flow-
ers or for ornamentation.’” (quoting American Heritage
Dictionary of the English Language 1904 (4th ed. 2000)));
“‘[A] usually round vessel of greater depth than width
used chiefly as an ornament or for holding flowers.’”
(Merriam-Webster’s Online Dictionary, Vase,
http://www.merriam-webster.com/dictionary/vase (last
visited June 13, 2014))).
Dependable argues “it was an error to rely on a defini-
tion of ‘vase’ since the term vase does not appear” in
Dependable’s proposed heading 7010. Appellant’s Br. 9.
Dependable contends the CIT instead “should have con-
centrated on the definition of container, which does ap-
DEPENDABLE PACKAGING v. US 9
pear in heading 7010.” Id. Appellees counter the CIT
correctly determined “the products at issue are glass
flower ‘vases’ despite Dependable’s avoidance of that
term.” Appellee’s Br. 14 (citing Dependable Packaging,
2013 WL 646328, at *5).
Dependable’s argument is without merit. The CIT
properly relied upon the Explanatory Notes in determin-
ing the scope of heading 7013. The Explanatory Notes “do
not constitute controlling legislative history but nonethe-
less are intended to clarify the scope of . . . and to offer
guidance in interpreting” the HTSUS. Mita Copystar
Am., 21 F.3d at 1082 (citation omitted). The Explanatory
Notes are “‘generally indicative of the proper interpreta-
tion of the [HTSUS].’” Lynteq, Inc. v. United States, 976
F.2d 693, 699 (Fed. Cir. 1992) (quoting H.R. Rep. No. 100-
576 (1988), reprinted in 1988 U.S.C.C.A.N 1547, 1582).
Dependable is therefore incorrect that the term “vase” is
irrelevant to the proper interpretation of the headings.
Additionally, Dependable itself identifies the mer-
chandise as either “Generic Bud Vase” or “Generic Trum-
pet Vase” on its commercial invoices, see Dependable
Packaging, 2013 WL 646328, at *1; its sales brochures,
J.A. 150–159; and in its responses to Customs’ interroga-
tories, J.A. 194. Dependable never denies the merchan-
dise is vases, see J.A. 47, and indeed, during oral
argument agrees it is. See Oral Argument at 4:21–4:25,
available at http://www.cafc.uscourts.gov/oral-argument-
recordings/13-1300/all (counsel replying “yes” when asked
whether the subject merchandise is “sold by the stores, as
being in vases”). Finally, Dependable conceded the mer-
chandise is vases: “Q[uestion:] When you say glass con-
tainers, are you referring to vases, like the vases that are
at issue in this case? A[nswer]: Yes.” J.A. 47. According-
ly, we find no error in the CIT’s focus on “vase,” and
therefore turn to determining the principal use of the
merchandise at issue.
10 DEPENDABLE PACKAGING v. US
IV. The Principal Use of the Merchandise
Principal use provisions “‘call for a determination as
to the group of goods that are commercially fungible with
the imported goods’” in order to identify the “use ‘which
exceeds any other single use.’” Aromont USA, Inc. v.
United States, 671 F.3d 1310, 1312 (Fed. Cir. 2012) (quot-
ing Primal Lite, 182 F.3d at 1365; Lenox Collections v.
United States, 20 C.I.T. 194, 196 (1996)). The CIT ana-
lyzes the “Carborundum factors” in determining which
goods are “commercially fungible with the imported
goods.” Id. at 1312–13. The factors include:
[The] use in the same manner as merchandise
which defines the class; the general physical
characteristics of the merchandise; the economic
practicality of so using the import; the expectation
of the ultimate purchasers; the channels of trade
in which the merchandise moves; the environment
of the sale, such as accompanying accessories and
the manner in which the merchandise is adver-
tised and displayed; and the recognition in the
trade of this use.
Id. (citing United States v. Carborundum Co., 536 F.2d
373, 377 (CCPA 1976)).
The CIT found the “[a]pplication of the Carborundum
Factors demonstrates that Dependable’s vases are com-
mercially fungible with other clear glass vases that are
primarily used for decorative purposes,” thus falling
under heading 7013. Dependable Packaging, 2013 WL
646328, at *5. Dependable disputes that determination
here.
A. General Physical Characteristics
The CIT found this factor “shows that the vases are
commercially fungible with other clear glass vases that
are sold empty at retail and are used for decorative pur-
poses.” Id.
DEPENDABLE PACKAGING v. US 11
The general physical characteristics of the merchan-
dise are not disputed by either party. Examining the
merchandise, the CIT found:
The bud vases are eight inches in height, with a
quarter-inch lip that the parties agree is not de-
signed for any sort of closure. The lip surrounds
an opening measuring one and one-half inches in
diameter. The bud vases have a narrow neck ex-
tending downward five inches from the opening.
The neck then widens into a bulbous shape, two
and three-quarters inches in diameter at its wid-
est point, and ends in a slightly concave bottom
two inches in diameter. The bud vases also have
deepening striations beginning one inch below the
lip that continue to the bottom of the article.
The trumpet vases are nine and three-quarter
inches in height with a quarter-inch lip that the
parties agree is not designed for any sort of clo-
sure. The lip surrounds an opening measuring
three and three-quarter inches in diameter. The
diameter of the opening gradually narrows (as one
moves two-thirds of the way down the vase) to a
diameter of three inches, widening again thereaf-
ter to end in a bottom measuring four and one-
quarter inches in diameter.
Id. at *1 (footnote omitted). The vases’ physical charac-
teristics are indistinguishable from other glass vases sold
at retail for the purpose of decoration. See J.A. 218, 220–
22 (testimony of a Customs Senior Import Specialist
about her visits to various retail stores that sold similar
vases for decorative purposes), 239–46 (exhibit document-
ing various retail stores selling similar vases for decora-
tive purposes).
Additionally, “[t]he design features of the vases that
Dependable points to as indicating use as [] packing
material (narrow waists, long necks, small openings,
12 DEPENDABLE PACKAGING v. US
inexpensive glass) are apparent in . . . other, virtually
identical vases,” which indicates Dependable’s merchan-
dise is “commercially fungible” with other inexpensive
vases that are sold empty at retail and used for decorative
purposes. Dependable Packaging, 2013 WL 646328, at *5.
Finally, Dependable’s vases do not include closures
and thus are not well-suited for “conveyance or packing,”
as required by Dependable’s proposed heading. Subhead-
ing 7010.90.30 provides for:
Carboys, bottles, flasks, jars, pots, vials, ampoules
and other containers of glass, of a kind used for
the conveyance or packing of goods; preserving
jars of glass; stopper, lids and other closures of
glass: . . . Other: . . . Other.
HTSUS 7010.90.30 (emphasis added). The products listed
in this heading typically have closures. The Explanatory
Notes to heading 7010 further support this proposition:
“The above-mentioned containers are generally designed
for some type of closure”; “They generally have a large
opening, a short neck (if any), and as a rule, a lip or flange
to hold the lid or cap”; and the covered containers also
include “[a]mpoules . . . intended to serve, after sealing.”
See also Latitudes Int’l Fragrance, Inc. v. United States,
931 F. Supp. 2d 1247, 1254 (Ct. Int’l Trade 2013) (“The
capacity of the bottles to take a stopper is a physical
characteristic that distinguishes glassware for the con-
veyance of goods under heading 7010 from decorative
glassware under heading 7013.”). Accordingly, that
Dependable’s vases do not have a closure is indicative
that they do not have the physical characteristics of
merchandise that would fall under heading 7010.
Because Dependable’s vases are fungible with other
decorative glassware that falls under heading 7013, the
general physical characteristics favor classifying the vases
under heading 7013.
DEPENDABLE PACKAGING v. US 13
B. Actual Use
The CIT determined the “use in the same manner
which defines the class,” or actual use, favored classifying
Dependable’s merchandise as glass vases primarily used
for decorative purposes. “[A]ctual use of the particular
imported goods is evidence of the principal use of the
merchandise involved. Actual use of the goods involved is
but one of a number of factors, and perhaps one of the
more important of the Carborundum factors.” Aromont,
671 F.3d at 1313. Dependable contends the actual use of
the merchandise is use for “wet packing and conveyance
of flowers” from the packing house to retailers. Appel-
lant’s Br. 14.
The CIT correctly concluded that the actual use of the
merchandise is primarily decorative. It is undisputed
that the merchandise is filled with flowers when sold to
the end purchaser, and the unit is sold for a price higher
than either the flowers or the vase individually. Addi-
tionally, purchasers of the unit at retail are able to dis-
play flowers in the vases and then reuse the vases in
order to display flowers bought later in time. Indeed,
Dependable concedes that consumers “do[] not want to go
to the trouble of buying vases and flowers separately, but
want[] the ease of having the glass containers and flowers
as a unit ready to be displayed at home or in the office.”
Id. at 19 (emphasis added).
Dependable’s vases are not “sold empty at retail, indi-
cating that they have some use as packing materials.”
Dependable Packaging, 2013 WL 646328, at *7. However,
the ultimate use of the merchandise, consistent with the
way in which other inexpensive glass vases are used,
evidences a primarily decorative purpose. Additionally,
that the vases can be used for conveyance does not negate
the fact that they are also used primarily as decoration.
Accordingly, the actual use of the merchandise is primari-
14 DEPENDABLE PACKAGING v. US
ly decorative, which favors classification under heading
7013.
C. Economic Practicality
The CIT found there was “no admissible evidence on
the record that the vases’ use as packing containers is
economically practical.” 5 Dependable Packaging, 2013
WL 646328, at *7. According to Dependable, however,
this factor is “decisive” in finding the vases are classifia-
ble under 7010 rather than 7013 because “Dependable’s
glass containers are the most economically feasible way to
ship flowers from a packing house to supermarkets.”
Appellant’s Br. 21 (citing J.A. 123). Dependable asserts
that because Dependable conveys and packs the flowers
before arrival at the retailers, supermarkets do not need
to hire florists.
Dependable fails to offer any evidence for this state-
ment, and indeed, when asked during oral argument
about its statement in its briefing that “most supermar-
kets do not have florist[s] on their premises that can care
for flowers,” Appellant’s Br. 21–22, counsel conceded “I
perhaps did misp[ea]k.” Oral Argument at 15:26–16:20.
Without evidence on the record that supports Dependable,
this factor favors classifying the merchandise under
heading 7013.
D. Expectations of the Ultimate Purchasers
Dependable argues the ultimate consumers of De-
pendable’s merchandise purchase the vases “not for the
5 “[U]nder 28 U.S.C. § 2639(a)(1), a classification of
merchandise by Customs is presumed to be correct . . . [so]
the burden of proof is upon the party challenging the
classification.” Rollerblade, Inc. v. United States, 282
F.3d 1349, 1352 (Fed. Cir. 2002) (internal quotation
marks and citations omitted).
DEPENDABLE PACKAGING v. US 15
purpose of acquiring a decorative vase but for the convey-
ance of transporting flowers in a container.” Appellant’s
Br. 17.
The record indicates that, at retail, the unit of the
vase and flowers sells for more than the cost of flowers or
vase alone. Retail purchasers pay extra for the pairing of
flowers and vase when compared to the cost of flowers
alone. See J.A. 85 (“Q[uestion:] You take the exact same
bouquet of roses, you buy it out of the bucket without a
vase, it’s less expensive than the bouquet in the vase[?]
A[nswer:] Yes. It’s less cost for transport and product
obviously.”); see also Oral Argument at 4:39–5:03 (counsel
replying “yes” to both whether customers pay more for the
vase and flower combination and whether retailers charge
more for that combination). That the unit price is more
expensive than flowers alone indicates that acquiring
Dependable’s vases is not merely incidental to the pur-
chase of the flowers, as would be the case if the vases
were merely packing containers.
Dependable also argues that a purchaser “would not
expect to reuse the glass containers for decoration after
transporting the flowers to their intended location.”
Appellant’s Br. 17. However, Dependable has provided no
support for this assertion. See Dependable Packaging,
2013 WL 646328, at *6. It is also not disputed “that the
vases are capable of reuse and that the ultimate purchas-
er would have the option to do so.” Id.; see also J.A. 79.
The CIT correctly determined that the ultimate purchaser
buys the vases for primarily decorative purposes, not to
perform conveyance or packaging.
E. Channels of Trade
Dependable argues that because its vases “are never
sold for any purpose other than that of being used as a
container for conveying or packing of flowers” this factor
supports classification under 7010. Appellant’s Br. 19.
However, Dependable’s sale of the empty vases to packing
16 DEPENDABLE PACKAGING v. US
houses does not mean they are fungible with glass con-
tainers intended to be used for packaging or conveyance.
The ultimate purchaser buys the vase at retail for the
purpose of decoration, as determined above. Thus, we
agree with the CIT’s analysis that “the movement of the
vases in trade merely suggests that Dependable’s vases
travel in an atypical manner to the final purchasers who
employ them in a typical manner.” Dependable Packag-
ing, 2013 WL 646328, at *6.
F. Environment of the Sale
The manner in which a product is displayed and ad-
vertised is relevant to an analysis of this factor. See
Carborundum, 536 F.2d at 377. It is undisputed that the
vases are filled with flowers and displayed for sale at the
retail location in order to encourage customers to pur-
chase the vase and flower unit because of the decorative
value of the vase and flowers combined. Indeed, Depend-
able’s own marketing materials depict some of its vase
and flower units being used as decoration and state
“retailers hope that consumers would be attracted to the
presentation of the flowers within glass containers.” See
J.A. 160, 161, 164; Appellant’s Br. 20.
G. Recognition in the Trade of This Use
Under this factor, “courts consider whether the mer-
chandise is recognized in the trade as having that particu-
lar use or whether it meets certain specifications
recognized in the trade for that particular class of prod-
ucts.” Aromont, 671 F.3d at 1316. Dependable contends
the trade recognizes its merchandise as “utility vases,”
which reflects “the durability of the glass containers” and
their ability to protect the flowers during transport.
Appellant’s Br. 23. However, the only record evidence
related to this factor is Dependable’s testimony about the
use of its actual customers, “rather than connoting any
broad commercial meaning or industry practice.” De-
pendable Packaging, 2013 WL 646328, at *8 (citing J.A.
DEPENDABLE PACKAGING v. US 17
76–77) (“Q[uestion:] Is that a term of art, utility vase?
A[nswer:] Of art, no. Q[uestion:] Is it something used in
the industry, that term ‘utility vase’? A[nswer:] They
usually use utility vase as cheap.”). As discussed above,
the record shows that vases that are “virtually indistin-
guishable” from Dependable’s glass vases are sold empty
at retail for the purpose of decoration. Id. The record
thus shows that this factor is neutral.
In sum, nearly every Carborundum factor weighs
heavily in favor of classifying Dependable’s merchandise
under heading 7013 rather than heading 7010, and not
one supports Dependable. Accordingly, the CIT correctly
granted summary judgment upholding Customs’ classifi-
cation of the vases under heading 7013.
CONCLUSION
The decision of the CIT is
AFFIRMED