UT/2023/000023 - [2024] UKUT 00096 (TCC)

In agreement with Ms Brown, we consider that the remainder of Cozy Pet’s grounds in relation to the cat tree and double column cat scratcher (Grounds 2 to 7) become academic. In summary those grounds largely assume the classification regulation does not apply by analogy when we have held that it does. Certain of these grounds impermissibly seek to undermine the reasoning given in the classification regulation in circumstances where no challenge has been, or can now be, made to the validity of the regulations. So, under Ground 7, Cozy Pet argues the FTT was wrong to find the plush provided the essential character as opposed to the sisal by considering which material predominated whereas that was in essence the reasoning required to be adopted by the classification regulation (the reasoning of which we have held does apply by analogy).

Finally, to the extent the grounds take issue with the way in which the FTT addressed the GIRs, headings and notes then we do not consider those to stand up in the light of the CJEU’s decision in BR Pet PV. That decision confirms the FTT was correct to rule out the category of furniture and to adopt the approach of seeing which covering material was present to the greatest degree. (Although that decision is not binding on us, we consider it is highly relevant to the matters before us and highly persuasive.) As regards the FTT’s findings regarding which covering material was present to the greatest degree, no challenge has been made against the FTT’s finding that (with the exception of the single column cat scratcher) the plush predominated over the sisal. Nor, in our view, would any such challenge have been sustainable. In the light of the evidence which included photographs of the products which we were taken to as well we consider it was entirely open to the FTT to find as it did.

The FTT’s factual findings, that plush covered the products to a greater degree than sisal, as regards the cat tree and cat scratchers products under appeal to us also mean Cozy Pet’s arguments that the FTT wrongly classified the sisal element in the products are irrelevant; we do not therefore address those. (Cozy Pet highlights the sisal cord was wound round the cardboard tube rather than woven into a textile – which would result in a different classification. But that issue could only be relevant to the single column cat scratcher, where the FTT found there was more sisal than plush a product in respect of which no appeal against the FTT Decision has been brought.)