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News Cerveceria Costa Rica (Magic Hat) Suing West Sixth Brewing

Discussion in 'Beer News & Releases' started by Nutwood, May 21, 2013.

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  1. CADMixes

    CADMixes Initiate (168) Feb 29, 2012 Massachusetts

    Consider for a moment that a less-knowledgable consumer might see one beer with a 9 and another beer with a similar-looking 6 and assume that there was a relationship between them.

    The point is not that someone would accidentally buy West 6th when they were trying to buy Magic Hat (or vice versa), the point is that someone might think that West 6th and #9 are related products.

    But it's ok, critical thinking is hard too.
  2. rlcoffey

    rlcoffey Initiate (0) Apr 20, 2004 Kentucky

    The words "west sixth" right above the logo handles that problem. Why would anyone with critical thinking skills assume that any two numbers belong to the same brewery? Why arent they suing ABI over 312?

    Im much more likely to assume that any psychedelic design is from Magic Hat than any number is. Because, you know, that is the constant in all their logos. Of course, I also know that many designers use psychedelic designs so I should verify first, before ignoring another Magic Hat product.
  3. rlcoffey

    rlcoffey Initiate (0) Apr 20, 2004 Kentucky

    I wonder if Racer 5 is next in their sights if they win this lawsuit?

    That one is even more like #9, in that the numeral is in the center of the circle.
  4. StarRanger

    StarRanger Initiate (153) Nov 27, 2006 North Dakota

    The logo is an image, you can not add and image to and image or subtract one from the other, they depict numbers but they are an image. The human brain makes connections. Flip or mirror an image, the brain can still recognize the image and make the connection.

    There are lots of fonts where the 6 does not look like an upside down 9, in this case it does. The font is not exactly the same but compared to all of the other fonts out there that could have been used, those two fonts are VERY, VERY close.

    People have different opinions and if they see the connection that you don't and if you can't recognize that fact, then it says alot more about you than it says about them.
  5. Sarlacc83

    Sarlacc83 Crusader (752) Mar 2, 2008 Oregon
    Beer Trader

    This thread shows a fascinating level of mental gymnastics by people who are absolutely sure the big guy is always wrong and the little guy is always right.

    Face it: West 6th Brewing came out with this issue to rile up public opinion in a calculated and cynical move, and their customers who have a connection with the brewery (In fact, I'll postulate that one of you Kentuckians works for the brewery) and those who hate Magic Hat on a purely emotional level are arguing loudly and vehemently to muddle the issue. It's pretty simple to me: West 6th lied about all this. They're trying to engage us at an emotional level by misrepresenting the facts to drum up bias against a company that has them dead to rights. I'd even be willing to bet they shrewdly decided to do this so that when they change their logo, they make up the money it takes to do so by having the riled up fan base buy more of their beer.

    Craft brewers are just as capable of being dicks as any 'faceless' corporation. Mark my words, we're going to see more of this manipulation by the new guys in the future. Why bother researching things when you can try get public opinion on your side after you screw the pooch?

    Also, to those of you who think there's no way anyone can see the resemblance, you've chosen not to see it. When I first clicked on the West 6th page, I thought they were showing off the Magic Hat symbol first instead of their own.
    bum732, Norica, bigfnjoe and 4 others like this.
  6. BorisKarloff

    BorisKarloff Aspirant (200) Apr 29, 2013 Ohio
    Beer Trader

    It seems like you're being deliberately obtuse - it isn't hard to look at the two logos and see some obvious similarities between them. Yes, a 6 is not a 9, but I think that looking at the bigger picture makes it a lot more clear.
  7. LambicPentameter

    LambicPentameter Meyvn (1,471) Aug 29, 2012 Michigan
    Beer Trader

    Indication of a common production source is one of Magic Hat's specific claims regarding the infringement of their trademark. I'd say it matters.

    We agree it sucks, and I understand that, on a certain level, this is "just business". However, I still maintain that even if Magic Hat's actions are within the boundaries of what is considered legally reasonable, it's still ethically questionable. The suggestion that Magic Hat is incurring any penalties or loss of revenue or brand identity/goodwill because of West Sixth's logo is a stretch, and I think there are clues within Magic Hat's actual complaint that suggest this is more than just defending their trademark so they don't lose it.

    But ultimately, it doesn't matter--they have the legal right to pursue this, and it will likely be determined by the courts or if West Sixth decides they can't afford to fight the battle and concedes.
  8. rlcoffey

    rlcoffey Initiate (0) Apr 20, 2004 Kentucky

    Disagree. They are clearly in the same family of fonts, but within that family, they are miles apart. I broke it down in detail upthread somewhere. Almost every design element of the font is different (thickness of vertical elements, thickness of horizontal elements, curvature of loops, curvature of balls,etc).

    Its pretty much the family of fonts you need to use if you are going to build the edge of the six into the circle.

    From reading the correspondence back and forth, it looks like an agreement would have been reached if Magic Hat hadnt tried to claim absolute control over the number 6. West 6th refused to promise to never use the number 6 alone without words, and Magic Hat cut off communication and then sued. Now, that may not be the real story, but I think Magic Hat asked for WAY too much.
  9. rlcoffey

    rlcoffey Initiate (0) Apr 20, 2004 Kentucky

    There are some similarities, I never denied that, I even pointed them out on an earlier page.

    But the big picture is that they have way, way, way more differences that easily separate them. And in my engineering brain, a 6 is not a 9 is one of the biggest differences. Whenever possible, reduce any problem to math.

    If that was the only difference, it wouldnt be enough. If it was a psychedelic design with a #6 in a circle with a star inside the loop of the six, I would have called West Sixth out on it last year.

    Now, that would be extreme copying, but I dont see enough similarities to ever be confused.

    I will say that until this issue came up, I didnt get the star on their logo. It makes sense as a compass now, but I think it failed as a design element.
  10. LambicPentameter

    LambicPentameter Meyvn (1,471) Aug 29, 2012 Michigan
    Beer Trader

    Hold on now. I didn't quote West Sixth's third letter because that wasn't the point of discussion. If I quote something, I'll include the full context--I just wanted to make sure we were doing that for the first letter, since you had cited *part* of the wording.

    I agree that the letters make it look like they hadn't provided design alternatives at that point. That's a big mistake on West Sixth's part, although I think the real mistake came in agreeing to remove/change the star in the first place. Especially after they made the initial case that the mark wasn't infringing on Magic Hat's mark. If I'm West Sixth, I'm at least looking into the possibility of new legal counsel. They've made what I thought was a pretty solid case against Magic Hat much harder do to the mixed signals and changing of position. I'm not sure if the letters leading up to the lawsuit will have any bearing on a ruling about whether the mark infringes or not, but I can see why Magic Hat finally decided to pursue that route instead of continuing to correspond.

    However, I maintain that the very act of demanding West Sixth change their mark is overreaching and a thinly-veiled bullying tactic. They are defending it because they have a right to, not because it's the right thing to do.
  11. rlcoffey

    rlcoffey Initiate (0) Apr 20, 2004 Kentucky

    If the letters have any bearing, then Magic Hat made a huge mistake in conceding that the cans arent confusing because of the "West Sixth" words above it. That would basically take the lawsuit down to tap handles and tee shirts.

    However, I dont think the letters matter, its why both included the boiler plate language about how nothing in the letters concedes any rights or whatever.
  12. LambicPentameter

    LambicPentameter Meyvn (1,471) Aug 29, 2012 Michigan
    Beer Trader

    This post is missing the point, however. The standard for trademark infringement is not two different marks having similarities. That's a ridiculously broad way of defining a trademark. This is why one of the basic tests for Likelihood of Confusion includes looking at the strength of the mark holder's trademark. Marks that use generic terms (and I think a number is pretty generic) are weaker than marks that use something specific and unique. For example #9 is much weaker as a trademark than say, Three Philosophers.

    Now, West Sixth's trademark isn't particularly strong either, because it's a street name/number, but the point is that it's overreaching for Magic Hat to claim copyright infringement because in a highly specific and context-less review of the two marks, there are similar elements. Taken as a whole, the two marks don't resemble each other.
    Hoppenheimer likes this.
  13. Volntitan

    Volntitan Initiate (0) May 18, 2008 Tennessee

    Well that explains somebody's defense of Magic Hat...they get paid...
  14. LambicPentameter

    LambicPentameter Meyvn (1,471) Aug 29, 2012 Michigan
    Beer Trader

    Yawn. If you don't agree with a position, just explain it away as biased.

    I have no loyalty to West Sixth or care if they remain in business or fail, and I have no ill will towards Magic Hat, outside of my distaste for their belief that West Sixth's clearly distinct logo infringes on their own logo. I actually will occasionally enjoy a #9 during the summer--especially when I'm somewhere that prohibits bottles.

    The idea that Magic Hat has West Sixth "dead to rights" is laughable. If they did, I don't think they would have started out with a letter to West Sixth. I think they would have sent them a C&D letter or started with the lawsuit. I think they did the letters, not out of the kindness of their heart, but because they felt they had a better chance of success if they could just pressure the 1-yr-old brewery into conceding, because if it was left to a judge, there was a very real possibility that he'd assess their claim as overreaching and an expectation of overbroad trademark protection.

    I do agree with your assessment that West Sixth made some mistakes and wrote some misleading things, and that now the public opinion campaign is the best option they have short of emptying their pockets for a legal battle, but don't conflate West Sixth's missteps with the idea that Magic Hat's trademark is being infringed per their claim.

    And to people who insist they are confused and genuinely thought that the West Sixth logo is a Magic Hat product... good lord. You may want to stop admitting that. It's one thing to recognize similar elements within the two logos. It's quite another to look at that West Sixth logo and think that it's a Magic Hat product. That's absurd.
  15. cavedave

    cavedave Poo-Bah (2,255) Mar 12, 2009 New York
    Beer Trader

    Now if West 6 turned out be Magic Hat, I don't mind, I don't mind
    If the mountains fell in the sea, let it be, it ain't me
    biscodoll, kirkse and chimneyjim like this.
  16. sandiego67

    sandiego67 Initiate (0) Feb 25, 2008 California

    Last weekend, I reached into a cooler at the pool looking for a Diet Coke and grabbed a Coors Light instead. Damn silver bullets!
  17. Sarlacc83

    Sarlacc83 Crusader (752) Mar 2, 2008 Oregon
    Beer Trader

    Edit: Link to ratebeer quote I mentioned: http://www.ratebeer.com/forums/magic-hat-bullying-local-kentucky-brewery_234766_16.htm (2nd one down, by gkost)
  18. Kory

    Kory Initiate (0) Apr 3, 2012 Ontario (Canada)

    I would love to side with West 6th, but I have this sick feeling that West 6th designed their logo intentionally knowing it could attract a law suit with Magic Hat. Well probably not, i don't know but just think about all of this national publicity for the "little" brewery (as well as the overall craft beer struggle over corporate big shots). I just have a feeling that something was intentional here...

    I just briefly read others posts, I saw some people say these logos look "radically" different or something like that...are we serious?
  19. jRocco2021

    jRocco2021 Disciple (351) Mar 13, 2010 Wisconsin
    Beer Trader

    Can't wait until some guy walks into your store and asks "why don't you have any magic hat” lol
  20. LambicPentameter

    LambicPentameter Meyvn (1,471) Aug 29, 2012 Michigan
    Beer Trader

    Yes, some of the posts have been biased. Especially the ones that focus on Magic Hat's terrible beer. However, it's one thing to recognize some of the bias and quite another to discount all defense of West Sixth as the result of bias and prejudice against the big brewery.

    I can't speak to what BAs, on the whole, do as it relates to their preference for how breweries should resolve legal disputes. I tend to agree that an informal approach is better than a lawsuit right off the bat, but that doesn't mean there aren't situations in which reaching out informally is actually advantageous for the person pursuing the claim. This particular case seems that way because of how disparate the overall logos are from one another. But yes, in general, without context, I would tend to argue that it's better to avoid the lawsuit. I also will concede that Magic Hat is in sort of a no-win situation here, because either way, they are the bigger brewery with much greater resources trying to force action upon a smaller brewery. However, I still contend that is a bed of their own making, since it's the pursuit at all of the trademark infringement that makes them a bully in this case.

    My use of the factual descriptor of West Sixth as a 1-yr-old brewery is in no way a demonstration of bias. It's an observation of the FACTS, that the brewery being asked to change it's logo is new to the scene. How is that biased?

    Ulterior motives matter, but not when it comes to deciding whether there is actual trademark infringement or not. I don't think West Sixth's behavior shows anything about their belief of how they would fare in a court battle. I think their actions clearly show that they don't want to spend the money to undertake a court battle AND they don't believe their logo is infringing, so they are making their case in the cheapest way possible. Also, you seem to think that changing the product is some easy process that doesn't incur a lot of costs. As a young brewery, West Sixth would not only have the cost of physically changing their product labels, but they would incur the much more damaging cost of having to start over with finding a recognizable branding scheme after they've only had a year on the market to establish some recognizability. It's an extremely risky proposition, and they are in a tough spot because they likely don't have the resources to fight the battle in court, but can't afford to just give in to Magic Hat's demands.

    And yes, back to your original generalization about bias. I can see the similar elements. I think anyone with basic powers of observation can see that yes, both logos have an 8-pointed star/compass/dingbat/whatever. And yes, we can all see that in this font family, an upside down 6 looks like a 9 and vice versa. My point is that there is a chasm of difference between being able to identify similar elements within two logos and meeting the standard for trademark infringement. Just because every person on this thread can see those similarities doesn't mean that there is a legal Likelihood of Confusion basis.

    So draw all the geometric connections you want. Your ability to connect those things is very different from the actual laws governing trademark protection. And *that's* the bottom line
    Hoppenheimer and Nutwood like this.
  21. Volntitan

    Volntitan Initiate (0) May 18, 2008 Tennessee

    You don't post on VolNation, do you?
  22. Sarlacc83

    Sarlacc83 Crusader (752) Mar 2, 2008 Oregon
    Beer Trader

    Couple things and then I'll have said my piece:

    So when Mr. Ray sued Disney/Pixar over Finding Nemo's manta ray character, was he bullying? Or is it only when a larger business goes after a smaller business? Telling other people to fix their screw-ups isn't bullying, in my estimation. Nor is protecting intellectual property, even if the 'theft' is unintentional. Is it because we're so used to plagarism on the internet that it seems like everything should just be free? And, furthermore, if the mistake is unintentional, then why is it so hard to cop to the fact?

    The 1-year aspect - I should used the term slanted, but it's a fact that makes a specific connection of the David v. Goliath angle. Alternately, if I used the phrase: "The 19 year old brewery is seeking to...", I'm intending to draw you to the conclusion that they're in the right by they fact they're established.

    As for the second part, I'm under no impression that product redesign isn't costly. In fact, in my first comment, I mention that West 6th could be looking to ramp up sales to pay off the redesign, and to do so, they've started this online battle. Furthermore, it's pretty clear to me, from the timeline, that West 6th wasn't initially going to have any problem with cost of the redesign. (They might have been able to push the cost back on the design company for screwing up, and maybe they changed their minds when they couldn't obtain the necessary leverage.)

    Finally, if the issue here is the likelihood of confusion, then when people who are well-informed or work in the industry can see how the marks would cause issues, then that is positive evidence which the 'injured' party can use to make their point. This is where public perception actually matters, because you're trying to prove that the public can be deceived.
  23. woosterbill

    woosterbill Poo-Bah (2,616) Apr 6, 2009 Kentucky
    Beer Trader

    I'm not sure what partial quotation you're referring to, as while I naturally will edit a quotation to present the relevant language as concisely as possible I have never failed to provide ellipses, brackets, etc to indicate how the text was edited, and I've never taken anything out of context or tried to be in any way misleading.

    Anyway, the point is that you're wrong when you say that you "maintain that the very act of demanding West Sixth change their mark is overreaching and a thinly-veiled bullying tactic." Magic Hat never demanded this concession, they simply accepted it when West Sixth offered it in that first letter you quoted. Now, you may believe that West Sixth was foolish to offer that concession without first establishing how expensive it would be to implement, but once they offered it I fail to see how it's anything but totally unfair to accuse Magic Hat of "bullying" for agreeing to West Sixth's idea.

    Like I've said all along, reasonable people can disagree about the merits of Magic Hat's initial complaint, and I can see how those who disagree with it might interpret it as bullying. Fair enough.

    However, once West Sixth entered into negotiations by asking to keep the 6 (a request that Magic Hat, it should be noted, accepted) but agreeing to change the star (an offer that Magic Hat also accepted), it was up to West Sixth to live up to their own voluntary suggestions. Only once they backtracked to Magic Hat resort to a lawsuit.
  24. LambicPentameter

    LambicPentameter Meyvn (1,471) Aug 29, 2012 Michigan
    Beer Trader

    I don't know the details of the Mr. Ray vs. Disney case. As in, I hadn't heard about it before this moment, so I can't comment honestly. I will agree that the "little" guy can be guilty of bullying the big guy. It's harder, because bullying implies that the bully has resources at his disposal that the little guy doesn't. Usually, it's size/age/muscle/etc. In this case, it's money. But I'm sure there are instances where a little guy can bully the big guy, especially in a world where brand identity is such a delicate thing--a little guy with damning information can bully a big guy with the threat of bad publicity.

    The 1-year aspect wasn't meant to draw any David/Goliath angle. Other than to point out that Magic Hat has deeper pockets than West Sixth. I realize this can impart connotations of feeling sorry for the little guy, but it's also an important fact that one of the two parties has much greater resources available to it than the other.

    But ultimately, my point here is that West Sixth didn't "screw up". The expectation that they shouldn't have approved the logo that they use because it might cause confusion with Magic Hat's is beyond what should be considered reasonable research and prevention of potential trademark infringement. The only mistake they made, in my opinion, was in conceding to some of Magic Hat's demands. I still think they would have won this case had it gone to court. Or if it goes to court. It's harder to tell now because I don't know how this public battle will influence the proceedings. Put yourself in West Sixth's shoes for a minute--they are being made to incur costs and risk for something that isn't an infringement. Admitting they are wrong might be the "easiest" way to go about it, but there's just as much to be said for defending the uniqueness of their own mark against onslaught from a company seeking to make them change it for a mark that is not really similar (outside of a couple of elements). These two logos just don't look similar, and within the context of Magic Hat's other logos, it's even more obvious that they come from two different stylistic approaches.


    All that being said, I appreciate the rational back and forth. We don't have to agree, but the fact that we can disagree rationally is refreshing.
    Sarlacc83 likes this.
  25. rlcoffey

    rlcoffey Initiate (0) Apr 20, 2004 Kentucky

    Not true. Magic Hat said they wont let them keep the six. That was what caused West Sixth to back off.

    West Sixth refused to give up the right to use the six without brewery name nearby. Magic hat refused to accept that.
    Hoppenheimer likes this.
  26. kingcrowing

    kingcrowing Initiate (0) Mar 24, 2009 Vermont
    Beer Trader

    One thing we can all agree on is rlcoffey isn't a lawyer! But he is a homer!
    TMoney2591, Norica, Chaz and 3 others like this.
  27. mychalg9

    mychalg9 Champion (848) Apr 8, 2010 Illinois
    Beer Trader

  28. woosterbill

    woosterbill Poo-Bah (2,616) Apr 6, 2009 Kentucky
    Beer Trader

    Not true. Magic Hat agreed to let them keep the six with the brewery name, and also agreed to let them keep using existing materials without the brewery name provided they were only "used in the brewery or taproom or in close proximity to the WEST SIXTH BREWING mark." How is that unfair?

    As far as your claim that "West Sixth refused to give up the right to use the six without the brewery name nearby. Magic Hat refused to accept that," here's what Magic Hat said: "you state that West Sixth cannot now agree that it will not promote a 6 logo without the words WEST SIXTH BREWING in the future. Accordingly, Magic Hat cannot now agree that it will not object to such use by West Sixth in the future."

    West Sixth's reply to this letter basically agrees on this front, stating "West Sixth Brewing remains willing to phase out use of the 6 Circle Logo with the compass design used by itself."

    Both sides seemed close to an agreement about the 6, but it was West Sixth that radically changed course by reversing their earlier offer to change the star.
  29. Lordkrystic

    Lordkrystic Initiate (0) Jul 18, 2012 Washington

    Would be a better statement coming from a non Vermonter.
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  30. rlcoffey

    rlcoffey Initiate (0) Apr 20, 2004 Kentucky

    The first is true. The second also is, but not for West 6th.

    Ive had it a few times. From Lexington, Im a bigger fan of Country Boy.
  31. rlcoffey

    rlcoffey Initiate (0) Apr 20, 2004 Kentucky

    That is true, but they also said they wouldnt commit to not using it again in the future, if I read it correctly.
  32. Nutwood

    Nutwood Aspirant (232) Jun 30, 2012 Kentucky

  33. rlcoffey

    rlcoffey Initiate (0) Apr 20, 2004 Kentucky

    That sounds like what I said.

    Magic Hat refused to guarantee they they could use it in the future. I dont have a problem with Magic Hat saying that, but Im not going to deny that they said it.

    West Sixth asked for the guarantee going forward, that Magic Hat would accept them using a 6. They refused. Maybe its a silly thing to ask for, but thats a part of negotiation. Ive seen all kinds of silly things requested in negotiations. I made a few when I bought my house (it led to me getting a few hundred extra dollars throw in to cover closing costs).
  34. woosterbill

    woosterbill Poo-Bah (2,616) Apr 6, 2009 Kentucky
    Beer Trader

    True, and Magic Hat had already made clear that if that happened, they would object. I quoted that in my last post.

    As far as the 6 with or without text is concerned, I think continued negotiations would have wound up granting West Sixth the right to keep using the 6 without text in their brewery. Magic Hat had already agreed to let them "phase out" existing merchandise with this problematic design, and since tap handles and such can last for years it is clear that they didn't have a serious problem with it within a non-confusing context like on-premise use.

    The real break-down in negotiations was clearly West Sixth's about-face on the star. Everything else was undergoing a steady back-and-forth refinement toward compromise, but when it came to that detail they suddenly announced that they were no longer willing to follow through on their own concession.
  35. LambicPentameter

    LambicPentameter Meyvn (1,471) Aug 29, 2012 Michigan
    Beer Trader

    Just a couple points of clarification:

    The only reason I updated your quote with the full quote is because you seemed to be making the argument that West Sixth initially proposed removing the star, when in fact, they proposed removing or changing it. I just wanted to make sure it was clear that West Sixth didn't immediately agree to remove it.

    As far as Magic Hat demanding that West Sixth change their mark, of course that's what they were doing. It was West Sixth that offered to remove/change the compass star, but the initial letter from Magic Hat was *because* they felt that West Sixth's logo was infringing on theirs and therefore needed to be changed. So no, agreeing to West Sixth's idea wasn't bullying, the very fact they were arguing that the two marks were similar is what I'm arguing was bullying.

    I agree that West Sixth's backtracking is what ultimately brought on the lawsuit, and they've now muddied their own waters by adding their own sort of missteps into the stew along with Magic Hat's wrong (imo) initial request/claim.
  36. woosterbill

    woosterbill Poo-Bah (2,616) Apr 6, 2009 Kentucky
    Beer Trader

    Makes sense to me. Whether deleting the star entirely or replacing it with a redesigned one, in either case the offensive element would be effectively removed. Magic Hat may well have been overreaching to demand any changes in the first place, but once West Sixth offered to amend the star it was on them to follow through.

    I think we've finally come to a point of almost total agreement - a rare thing in an internet argument! It's been a pleasure engaging in a civil debate.

    LambicPentameter likes this.
  37. Hotmetal1

    Hotmetal1 Aspirant (286) Feb 28, 2012 Mississippi
    Beer Trader

    Where have I seen these pics before?
    Lordkrystic likes this.
  38. cneville

    cneville Initiate (0) Sep 16, 2010 Ohio

    this is legitimately the best back and forth i've seen on this site. someone should lock this thread to show how it's done.
    Lordkrystic, Ranbot and woosterbill like this.
  39. StubFaceJoe

    StubFaceJoe Initiate (0) Nov 24, 2011 Colorado

    By this logic could I start a company called Coors2 and not risk the same result?
  40. StubFaceJoe

    StubFaceJoe Initiate (0) Nov 24, 2011 Colorado

    I hate chiming in on threads like this because I have no true background, but you can't tell me you can't see some super cool college type kids walking into a beer store, seeing that 6 and being like no way dude, magic hat's number 6, i heard this is way better! Sweet. We're not talking the people who frequent BA but your casual "Crafty" beer drinker.

    Second, it is common in the beer to distinguish between different beers in a brand numerically. Especially, those darn Belgians.
    kingcrowing likes this.
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