cullenszoo
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Post by cullenszoo on Jan 18, 2018 9:34:15 GMT -5
First off, Greetings to everyone. I've been a guitar player for 30+ years and been a gear nut from day one. Several years ago I started streamlining things and now I pretty much plug into my fx out direct to the board. I've also been tinkering with guitar building and pickup mods.
That tinkering leads me to my story. As a performer I've worked hard to create my own image and brand. This includes building my own signature guitar and customizing my own pickup to have my own sound. I'm sure many other members have done the same thing. The problem is big companies, in my case Seymour Duncan Pickups, are constantly looking for new product ideas, or names and aren't above stealing them. A while back I made a pickup to go in my signature tiger stripe guitar and called it the Hunter. Being proud of it I wrote about it on my FB page, reverbnation blog, and a few other outlets. A few months go by, I've been playing live and recording with the pickup mentioning it along the way. Just before Christmas I found out that Duncan was producing a pickup with the same name. While most people might think it's no big deal there are a couple of issues I have with it. So, I emailed Cathy Duncan, the CEO of the company to try and find some sort of resolution. A week or so later I finally heard back basically saying they hadn't had time to look into it. I've written back but as of this post there has been no response. I'm sure most people would think I should just let it go, rename the pup, and not worry about it. My problem is I've already publicized it. Not to mention a similar situation happened with DiMarzio a while back and they went as far as changing the name of their product. One could only wish Duncan were so kind. The point of my story is to warn fellow guitar nuts about sharing your creations on line. Now I don't know if they came up with the name independently or not but all these companies have to do is ignore you and claim it for themselves.
Thankfully I've been more cautious with my songs.
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Post by reTrEaD on Jan 18, 2018 10:10:39 GMT -5
Hey there Zookeeper. Excellent first thread. Welcome to GN2!
This is as much or more about business/legal as it is about pickups. There are things we all might learn through some discussion and debate here. I'll play devil's advocate and take the point of view of the established company. I can see reasons why they can and should be hesitant to change the name of their soon to be released product.
But maybe we can learn something that will help others avoid finding themselves in your situation.
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Post by Deleted on Jan 18, 2018 10:15:40 GMT -5
Not to mention a similar situation happened with DiMarzio a while back and they went as far as changing the name of their product. One could only wish Duncan were so kind. Dimarzio is the only big pickup company I would give my money to.
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cullenszoo
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Post by cullenszoo on Jan 18, 2018 10:52:50 GMT -5
Hey there Zookeeper. Excellent first thread. Welcome to GN2! This is as much or more about business/legal as it is about pickups. There are things we all might learn through some discussion and debate here. I'll play devil's advocate and take the point of view of the established company. I can see reasons why they can and should be hesitant to change the name of their soon to be released product. But maybe we can learn something that will help others avoid finding themselves in your situation. Sounds like a pretty good drill. As for them changing the name, I would think they have a lot more invested in the name than I do. Packaging, promotional materials etc. That's why I approached them early so any materials for the upcoming NAMM could be changed before they had money in it. And, we could have figured something out if they would be more responsive. On my side. I created the pup with the intent to include it as part of my branding keeping it for potential endorsements etc. (yes, it's a possibility) I posted it on different social media outlets including some copyright protected sites. I'm not familiar with precedence with non-trademarked creations or names but one would think Duncan would communicate more. I would expect to hear from their legal department wanting to figure something out. But no. They see themselves as the great and powerful pickup maker and I'm just some little guy trying to make a name for myself.
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Post by darthphineas on Jan 18, 2018 11:01:55 GMT -5
Yeah, I remember that DiMarzio story from last year's NAMM.
Apparently, a Duncan employee had a custom shop pickup made and used his own name for it. Nothing unusual. Lots of people do it. I've even asked for a custom name for a pickup from them. The point it, so what? tons of people seem to do that.
Anyway, DiMarzio was working with Satriani on a new model and the name they picked was the same as this one-off Duncan custom shop model made for a Duncan employee. The Duncan employee has an issue with the name, citing it had been the topic of a blog and used for gigs (or a video or whatever). So DiMarzio and Satriani opt to change their model. Honestly, Satchur8 is a MUCH cooler name than Magnetar. That round goes to DiMarzio for certain.
When reading the story, it refers to a blog about the Duncan one-off and it totally looks and has the specs of a 7-string Full Shred with a cermaic magnet. And we ALL know how much Duncan likes to re-purpose existing models with a mag swap or pole swap (JB-DD-Stag Mag-Holdworth-Invader and Custom-CC-C5-Full Shred and A2P-Jazz).
So...OP, you say you have a an image/brand you're building for your self/act? A tiger stripe guitar with a customized pickup? "hunter" can make total sense for an animal print guitar. think: Ted Nugent and his zebra stripe PRS!
First off, it appears the OP had this customized pup prior to the announcement of the big company pup? And you're saying that you've been using it live and recording with it and have mentioned it by name online (social media, etc). If that's the case, it sounds like a total apples-to-apples situation to me.
The legal aspects are at a level that I'd not dare to step in to. Total can of worms to speculate about that stuff.
At the most basic level, here's what stands out in my mind.... DiMarzio is an east coast company and known for (shall we say) shrewd business practices - lo and behold Larry's wrath upon some average Joe pumping out a few double cream humbuckers from his garage on the weekends (LOL!). meanwhile...the Duncan company is all about the west coast vibe and how customers are family (well, they make that sort of claim) and peace signs and flowers and rainbows and unicorns and all the laid back vibe.
And with that... DiMarzio was all chill about being cooperative with a competitor's employee? 10 pts to House DiMarzio.
I know the Duncan company has been having problems with growth and new ideas for pickups, even as much as parting ways with the most recent SVP Of Products just this week... but do they really need another in a long line of image-related issues?
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Post by reTrEaD on Jan 18, 2018 11:23:43 GMT -5
Costs for them might include market research from a advertising company, artist's time creating logos, physical banners and pamphlets that have already been printed.
Dunno how far along the line they are right now, but I reckon they already have some money into this.
I'm not surprised that they haven't responded. If you just go away, it won't cost them a dime.
Currently, my impression is they might not have mentioned their product publicly before now but the workup on their branding for it may have preceded yours by over a year. Dunno how long their product development cycle is.
Since they have (relatively) deep pockets, a resolution might come from a small monetary compensation to you. I suspect they might have a substantial amount of money into this already.
Feel free to link us to your facebook and social media postings.
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Post by reTrEaD on Jan 18, 2018 12:11:00 GMT -5
First off, it appears the OP had this customized pup prior to the announcement of the big company pup? And you're saying that you've been using it live and recording with it and have mentioned it by name online (social media, etc). If that's the case, it sounds like a total apples-to-apples situation to me. The legal aspects are at a level that I'd not dare to step in to. Total can of worms to speculate about that stuff. Aren't you a little young to be a Sith Lord? What's this about apples-to-apples? Are Big Companies required to monitor social media for every possible establishment of claim to a branding strategy and name? I reckon there's point where a big company can establish exclusive claim on a NAME. Unless the trademark has been registered, that comes with the product actually being in the market and the name becoming "household knowledge" through sales and advertising. If the little guy has advertised in mass markets, he probably established an exclusive claim. If not, he may have established a claim to continue using the name without the right to prevent another company to do so. Speaking of copyrights and trademarks... I looked at the facebook page you linked in your profile. lol
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Post by darthphineas on Jan 18, 2018 12:38:44 GMT -5
Are Big Companies required to monitor social media for every possible establishment of claim to a branding strategy and name? who said they did? no more than DiMarzio scanned the web for the Magnetar name.
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Post by Deleted on Jan 18, 2018 13:53:20 GMT -5
Hey darthphineas,
its cool to have you here man! From the old SD crew, Frank Albo used to hang around as well. You'll find some amazing pup-related articles here!
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cullenszoo
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Post by cullenszoo on Jan 18, 2018 14:06:22 GMT -5
The sad part is, in the long run lawyers would be the only ones to come out on top if it goes that far. If Cathy or someone from Duncan had contacted me after the holidays and things slowed down I would be a lot less bent. On the one side there is the question of them using the name. I'm not Gene Simmons, I don't randomly trademark words or symbols waiting for a payday so the name it's self can probably be used by anyone for anything. That said, is it possible someone with the company saw one of my postings and stole it? At first I thought not but their silence is starting to make me wonder. I'll share some pics as soon as I figure out what's up with photo bucket.
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Post by reTrEaD on Jan 18, 2018 14:52:11 GMT -5
I'll share some pics as soon as I figure out what's up with photo bucket. We'll get back to the conversation soon but it's probably worth explaining something about PhotoPhuggit. They've probably contacted you about paying a ridiculous amount of money so you can continue linking your images. Unless the person is using Chrome and a special plug-in, they won't be able to see images you've linked. Using the .html page won't help. If you link directly you'll get this. If you patch the link (quote my post to see the ~original I've appended) you'll see this
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Post by reTrEaD on Jan 18, 2018 15:06:36 GMT -5
The sad part is, in the long run lawyers would be the only ones to come out on top if it goes that far. Of course. If Cathy or someone from Duncan had contacted me after the holidays and things slowed down I would be a lot less bent. On the one side there is the question of them using the name. I'm not Gene Simmons, I don't randomly trademark words or symbols waiting for a payday so the name it's self can probably be used by anyone for anything. That said, is it possible someone with the company saw one of my postings and stole it? At first I thought not but their silence is starting to make me wonder. Would you care if they used the name but couldn't stop you from using it too? Would that be an option, acceptable on your side? That said, is it possible someone with the company saw one of my postings and stole it? At first I thought not but their silence is starting to make me wonder. Their silence might be because you've caused them to look at their paper trail for when they adopted the name Hunter. I really doubt they stole it. But they can't prove when that name came to them, you might have some legal standing.
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Post by darthphineas on Jan 18, 2018 15:22:10 GMT -5
several Charvel/Jackson elements at work there. clearly a striped animal print sort of graphic. direct mount pup. single knob. definitely an 80s-inspired shred style of a guitar. nothing totally original, but not exactly a clone either. once again, could you offer some timelines in to all this? when you started performing under the 'Cullen' brand? the first appearance of the guitar? and pickup? all that sort of thing. as far as their association with Lynch, they just started to talk to him again this past May. he was given the boot several years ago over developing a signature pickup with Arcane. they pull his custom shop models from the site and removed his name from the Screamin Demon on the website. he's not even currently shown as an artist on their site. the only mention of the Duncan company Hunter is on the ESP website. I also really doubt they 'stole' the name. if it's a Lynch item, it probably comes from the 80s song. it seems like it sort of comes down to how they want to handle it. they can be cool and work with you or they can be "the man" and tell you to get lost. I think it'd be embarrassing to be the california-dreamin' west-coast hippie-culture sort of company that lets Larry DiMarzio appear to be the more gracious person when presented with an identical scenario.
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cullenszoo
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Post by cullenszoo on Jan 18, 2018 17:39:24 GMT -5
several Charvel/Jackson elements at work there. clearly a striped animal print sort of graphic. direct mount pup. single knob. definitely an 80s-inspired shred style of a guitar. nothing totally original, but not exactly a clone either. once again, could you offer some timelines in to all this? when you started performing under the 'Cullen' brand? the first appearance of the guitar? and pickup? all that sort of thing. as far as their association with Lynch, they just started to talk to him again this past May. he was given the boot several years ago over developing a signature pickup with Arcane. they pull his custom shop models from the site and removed his name from the Screamin Demon on the website. he's not even currently shown as an artist on their site. the only mention of the Duncan company Hunter is on the ESP website. I also really doubt they 'stole' the name. if it's a Lynch item, it probably comes from the 80s song. it seems like it sort of comes down to how they want to handle it. they can be cool and work with you or they can be "the man" and tell you to get lost. I think it'd be embarrassing to be the california-dreamin' west-coast hippie-culture sort of company that lets Larry DiMarzio appear to be the more gracious person when presented with an identical scenario. Your right, it's an 80s style guitar because there are too many dull, black guitars out there. The body is from a Kit that I built about 5 years ago. The original neck was replaced with an aftermarket neck last year. The graphics are custom from inzane decals web site. the head decal was made by skin your skunk. Of course it has the Hunter pickup which wired to split with the push/pull volume knob. It has Schaller tuners and a Floyd Rose Special with a big brass block attached. You can hear some recent recordings on my bands reverbnation page, www.reverbnation.com/atomicempire. I've been recording/performing and basically establishing the "Cullen" brand for many years now. It started with solo music but maintained elements with a cover band called Reboot and continue with my current band Atomic Empire. I have a much better paper trail with my songs than I do with hardware. I figured a song would be more likely to be ripped off than a pickup so I didn't take the normal precautions. Well, during the course of this post I received a response from Cathy Duncan. Basically they don't care if I nickname the pup the Hunter I can't produce them under that name so my branding and effort to promote the pickup gets screwed. The rest of the email was your typical so sorry, go away.
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Post by reTrEaD on Jan 18, 2018 18:12:22 GMT -5
Well, during the course of this post I received a response from Cathy Duncan. Basically they don't care if I nickname the pup the Hunter I can't produce them under that name so my branding and effort to promote the pickup gets screwed. The rest of the email was your typical so sorry, go away. Did she say you can't produce under the name Hunter? What's the difference she means between 'name' and 'nickname'?
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cullenszoo
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Post by cullenszoo on Jan 18, 2018 18:29:48 GMT -5
Yes, she said I can't produce it under the name the Hunter. I think her using the term nickname is a way to look down her nose at it. Basically, I can call it what ever cute little name I want.
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Post by reTrEaD on Jan 18, 2018 19:46:12 GMT -5
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Post by darthphineas on Jan 19, 2018 7:45:10 GMT -5
Yes, she said I can't produce it under the name the Hunter. I think her using the term nickname is a way to look down her nose at it. Basically, I can call it what ever cute little name I want. seems that the Duncan company still hasn't announced the product. the only place is appears to be found is in relation to either the ESP 2018 "coming soon" announcement or in the product description of another of those 'entry level' Lynch models. didn't those instances just show up fairly recently? like I said, it sounds like they are digging in pretty hard for an artist they kicked off their artist list and for a product that they've done nothing to promote. sounds like you've had your customized pickup named and in the public eye a bit longer than them. personally, I'd keep going ahead business-as-usual with the name of your pickup. if they have an issue, let them spend the money on a lawyer. what I'm missing here is the opportunity for them to build a bridge to a customer, rather than burn it.
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Post by newey on Jan 19, 2018 10:03:39 GMT -5
They have almost surely already spent the money on a lawyer. Most larger enterprises will retain a law firm on an annual retainer, which covers whatever basic legal work arises during that year, for simple stuff like (for example) writing "cease and desist" letters to cullenszoo. Anything more complicated, like litigation, is over-and-above the retainer and billed hourly.
Cullenszoo said:
That's a copyright issue; this is a trademark issue. Apples to oranges. RT gave you the link to do a trademark search. First step is to see if SD has, in fact, trademarked the name Hunter for use on a guitar pickup. If not, you should jump in and file. But I assume SD's staff is competent, and they probably already filed for it.
Registering a trademark or servicemark, however, doesn't mean someone owns the right to market their product under the tradename. Registration simply serves as "notice to the world" of the claimed mark. If someone else was already using the mark (and can prove it), the later registration doesn't destroy the earlier user's claim.
However, if SD registered, "first use" litigation is going to get expense, as these are very fact-specific issues. And, presumable, cullenszoo would have to litigate it, as SD would stand on their registration.
The greater difficulty cullenszoo would have is the question of his intent to use the Hunter mark in commerce. I assume here that cullenszoo, as a musician, is not in the pickup business, and doesn't have a "track record" of producing and marketing pickups. A Facebook post that simply says something like "Hey, I'm using this cool new pickup I designed/made" isn't going to be enough to establish a mark. There would have to be an intent to use the mark in commerce, like: "Hey, I'm going to start selling these soon, check my website." or some such.
Cullenszoo's second problem is the question of damages. If he has no investment in the name to date, and hasn't as yet started marketing them, then there is no financial loss to him if he has to use a different name. If there is an infringement of the mark but no financial loss as a result, then cullenszoo would likely spend thousands of dollars in litigation expenses and receive only what are called "nominal damages" (i.e., a judgment for $1.00).
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Post by gitpiddler on Jan 20, 2018 7:25:27 GMT -5
Hey Cullen, welcome to the Nuthouse. I'm across the river in SoKno myself. How many of those pickups have you made?
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Post by darthphineas on Jan 20, 2018 9:45:23 GMT -5
They have almost surely already spent the money on a lawyer. Most larger enterprises will retain a law firm on an annual retainer, which covers whatever basic legal work arises during that year, for simple stuff like (for example) writing "cease and desist" letters to cullenszoo. Anything more complicated, like litigation, is over-and-above the retainer and billed hourly. I think most people understood the intention of my comment. let's take a peek at how the Duncan company appears to name some of their products... including, but not limited to ones lifted from songs or even artists: Pearly Gates - Billy Gibbons, ZZ Top Whole Lotta Humbucker - Jimmy Page, Led Zeppelin Nazgul - JRR Tolkein Saturday Night Special - Lynyrd Skynyrd Greenie - Peter Green JB - Jeff Beck Evenly Voiced Harmonics (EVH) - Eddie Van Halen IM1 - Eddie Van Halen again Weather Report - Jaco Pastorius Metal Fatigue - Allan Holdsworth High Voltage - Angus Young, AC/DC Dirty Deeds pedal - Angus Young, AC/DC again Killing Floor pedal - The Guess Who Forza pedal - Xbox game there are a few ranges of what's going on there to unpack.
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cullenszoo
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Post by cullenszoo on Jan 20, 2018 10:10:19 GMT -5
Hey Cullen, welcome to the Nuthouse. I'm across the river in SoKno myself. How many of those pickups have you made? Hello gitpiddler, nice to see someone local. I've made two of those pickups so far. One is in my signature tiger guitar. The other is in a 87-88 Kramer Aerostar zx20 I've modded with a floyd. imgur.com/lOim0YZ
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cullenszoo
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Post by cullenszoo on Jan 20, 2018 10:13:41 GMT -5
Well Darth, after spending some time on the US trademark registry it turns out they didn't register the name and a search of other pickup name turned up nothing. I'm guessing they just name them but don't trademark the name.
I appreciate the tip Retred
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Post by reTrEaD on Jan 20, 2018 11:29:28 GMT -5
It's actually Retread, but if you prefer to shorten just use the CAPS in my display name and omit the lower case letters. ------- I have some more advice for you . . . if you're interested. 1 - Look for forums that discuss things like how to set up a small businesses. Maybe they'll also have discussions about the trademark process. 2 - There are online operations for business law. You might not need to sit face to face with a lawyer in a brick and mortar law office to set up your business and establish your trademark. You might be talking about hundreds rather than thousands to get yourself established as a business. I would guess an LLC, but you'll get far better advice from a forum where they are focused on business rather than guitars. 3 - Don't be fooled by anyone who says you should just stay the course, reasoning since certain events happened in the past they set a pattern. They don't. Unless a case goes to court, no legal precedent has been established by those mutual agreements. ----- As much as we've enjoyed this conversation, there isn't much help you'll get from a guitar board. Feel free to continue the discussion and by all means, keep us posted on the events that occur along the way. But in addition to the conversation, you could do yourself a greater service if you talked with people who have legal expertise. Spend some time on the business boards to get business advice. Spend some time here to learn about the innards of your guitar, or just to chat.
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cullenszoo
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Post by cullenszoo on Jan 20, 2018 17:03:56 GMT -5
It's actually Retread, but if you prefer to shorten just use the CAPS in my display name and omit the lower case letters. ------- I have some more advice for you . . . if you're interested. 1 - Look for forums that discuss things like how to set up a small businesses. Maybe they'll also have discussions about the trademark process. 2 - There are online operations for business law. You might not need to sit face to face with a lawyer in a brick and mortar law office to set up your business and establish your trademark. You might be talking about hundreds rather than thousands to get yourself established as a business. I would guess an LLC, but you'll get far better advice from a forum where they are focused on business rather than guitars. 3 - Don't be fooled by anyone who says you should just stay the course, reasoning since certain events happened in the past they set a pattern. They don't. Unless a case goes to court, no legal precedent has been established by those mutual agreements. ----- As much as we've enjoyed this conversation, there isn't much help you'll get from a guitar board. Feel free to continue the discussion and by all means, keep us posted on the events that occur along the way. But in addition to the conversation, you could do yourself a greater service if you talked with people who have legal expertise. Spend some time on the business boards to get business advice. Spend some time here to learn about the innards of your guitar, or just to chat. Good info all around Ted. I'm actually enjoying this group. I plan to spend more time on other topics. I originally brought this topic up in a guitar builders group I belong to. There are many guys from professional builders to kit builders who create innovative designs and approaches to building. It wouldn't surprise me to see a company in need of some fresh ideas just take what they want and never compensate no less give credit to it's creator. The post lasted a couple of hours before it was taken down. Makes me wonder whos behind that group. lol Where I live, in Tennessee, it's relatively easy and cheap to establish an LLC and there are tons of resources available. All this is part of my initial 5 year plan, this just sped my timetable up.
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Post by reTrEaD on Jan 20, 2018 17:36:29 GMT -5
You're certainly welcome to join in other conversation that are already started or open a thread on something else that interests you or to open other conversations. Be sure to browse through Lutherie and Repair. You might find a few threads that could interest you. antigua has a subforum to pickups. Pickup Testing and Modelling antigua, ms, stratotarts, Charlie, and John often discuss some of the science involved in pickup making. btw, I noticed you typed your reply to me within the quote box. That's all to easy to mistakenly do when you're in Preview mode on the editor. If that window won't allow you to make new lines below the quote, click on BBCode and add some carriage returns at the very end of the page. When you go back to Preview mode, you'll be able to type outside the box and keep your reply separate from the quote.
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