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…sellers. I recently sat down with Ted. He actually contacted me. I had him on the show two other times, actually was episode 186 and also 152 and I'll leave those in the show notes but we talked about patents and trademarks before and hijackers and all that stuff. We had lunch together. Actually it was a cup of coffee.
We were going to have lunch but we weren't hungry at the time so we had some coffee, we sat at Starbucks. He was in town and we hang out for about an hour and a half. We talked about business but we talked a lot about life which was really kind of cool. I wanted to have him back on because after we talked, after having him on before and stuff he even gotten more sellers to have certain issues and certain questions and he wanted to share that again. I said we really should because a lot of times you don't really understand what to look for as far as if like someone sends you a cease and desist letter like is that something like you should react right away because it doesn't have the letterhead of attorney?
What are the things to look for if you receive something like that? Then the same thing is like how do you handle that? Then the other thing is like okay now if that happens to you, how should you handle that? Then this way here you have better understanding but what he has been seeing and he calls it, there are some sellers out there that are just bullying other sellers. He said I think it’s a big problem and I want to be able to come on and really just share some of these experiences that his clients have had.
[00:02:02] Scott: Hopefully to help all of us really see what is important to look at and how to react to something if it should happen. It's always good to be prepared as far as how to handle something before it actually happens if it ever happens. Being prepared is always really, really key. Really excited to have him on, this was a great conversation that we had. I think you guys are going to get a lot of value from it. Again, I'll link up all the show notes here with the past episodes I had him on and this one here will be episode 272 so you can find all the show notes and transcripts to this episode. Head over to theamazingseller.com/272.
Let me just say, before we get into this talk that I had with Ted I just want you guys to understand that business is going to have bumps in the road that it's going to have things like this that can happen and we just have to be able to deal with them. We have to be able to adjust and pivot if we need to and really understand on how to handle that. Same thing with the Amazon's announcement that recently came out about their reviews. They are cracking down on reviews again. It's just part of the game in business and we have learn to adapt.
Hopefully after you listen to this conversation I had with Ted you'll feel better about if this should ever happen you'll be better prepared. Let's go ahead, let's dig in, let's listen to this conversation that I had with my good friend Ted Limus.
[00:03:26] Scott: Hey Ted, welcome back to the podcast. What’s going on man? How are you doing?
[00:03:30] Ted: Hello Scott. Doing well, good to be back.
[00:03:33] Scott: We are away from each other, we were spending a morning together we did here recently you were visiting South Carolina and this is our first time talking after getting to meet in person which was really awesome by the way.
[00:03:48] Ted: Yeah, thanks. It was great to meet you in person and have coffee with you and talk about things that are important to your listeners.
[00:03:55] Scott: Yeah. It was just great listening to you explain what you've been hearing from sellers and their struggles and their sticking points and some of the things that might not necessarily even be something to worry about or some things that they are talking too lightly. That's really why I wanted to jump on here and really have that conversation not just us personally having a cup of coffee but we can actually talk about it here on the air and we can let other sellers know about this.
You call it like it's a form of bullying, where there are some sellers out there that are bullying some sellers around and you really think that there needs to be someone like yourself that's going to say, “Listen here are some things to look for that if it's happening to you, it's not really something that you should worry about,” or, “Yes this thing here sounds like something that you should probably pay attention to.” Let's maybe start there. Why don't you just let me know again what has been happening that you've been hearing from your clients and stuff and maybe then we can shed some light on it then we can get them some action steps or some things to look for if this ever happens.
[00:05:05] Ted: Yeah absolutely Scott. Again, thanks a lot for having me on. I get a lot of calls from your listeners and from private label sellers in general and it seems like a lot of them are having difficulty of course just responding to or knowing when to respond to this bullying that happens all the time on Amazon and in a lot of different ways. My hope was to equip your listeners with an ability to assess the risk level of a policy warning or a cease and desist letter that they receive or a message that they get through Amazon or a letter that they receive in the mail because your listeners aren't lawyers and they don't often really have the ability to assess the risk.
[00:06:01] Scott: Right. Maybe what we can do is maybe walk us through an example. Can you do that? Can you like maybe give us an example even if it's a hypothetical example? Give us something that might happen or that has happened and then maybe give us some clues as far as like what we're supposed to be looking for because a lot of times people like you said they are getting something like a cease and desist from someone, another seller and there's really no warrant in it, it's you're not really doing anything wrong but they are going to try to make you think that you're. Maybe you can lead us through maybe an example.
[00:06:34] Ted: Yeah, absolutely. I'll tell you about one that just happened to a client of mine last week. They got this a cease and desist letter from a law firm, a real law firm and from a real lawyer and it cited various statutes that they were claiming were being violated and in this case it was a patent. It was a real cease and desist lawyer. If you looked up this lawyer you'd see that he had a real law firm, this was a real deal but there was something awkward about it. It was dated 11 months earlier. The client called me up and he was in a panic because he thought, “I'm getting this letter so I got to stop selling my product.” I told him, “Hold on. Don't do anything. Let me evaluate this first. Let me take a look at it.”
We looked into it and we realized that this letter that was written 11 months earlier it was at that time that the patent application was pending but in the intervening time the patent had been denied by the patent office. They hadn't patented it at all. What we finally figured out, what was going on is that this seller had modified the attorney's letter to put in my client's seller name and information but otherwise all the details, all the blood curdling, cease and desist stop doing this was all in there. They forgot to change the date.
We were able to write the attorney back and of course copy the seller who's doing the bullying and tell them that, “Look, we know that your patent has been denied. You're making improper claims of patent infringement and you had better not have notified Amazon because you'll be liable to us for damages.” Honestly we're still waiting to see how that plays back but imagine the relief of my client when we went to put this out there to say you don't have to stop selling this product. We're going to put them in their place.
[00:09:02] Scott: Let's just say for example that was the case. It was the case it was a real patent but it still wasn't, it wasn't approved and it was pending. Is there still anything that can be done to you the seller that is technically infringing on a pending patent? How does that work? I'm not really sure how that works.
[00:09:26] Ted: Yeah, there is something that can be done because remember even though a product maybe patented or it may be subject to a pending patent registration often there are common law theories of recovery that are applicable. For instance, especially with design patents. If the look or shape of a particular product is what is at issue, well even if setting aside a patent law entirely, if you're infringing on somebody's what we call trade dress that is the overall look and feel of a way a particular product is marketed or there's a trademark infringement, those are other theories of recovery that they can still get you for. We can set aside the validity of the patent for purposes of that discussion.
This is where if you get a cease and desist letter from an attorney I'm telling your listeners, you really need to talk to a qualified attorney about that. Don't leave it to guess work. Talk to an attorney about it. One other thing Scott too is your listeners need to understand, just because they receive a cease and desist letter from an attorney don't just knee jerk pull a product off of Amazon. You don't know. Until you've talked to an attorney and assessed the merits of that complaint, don't do anything because that makes you just look guilty.
[00:11:13] Scott: That's good point.
[00:11:16] Ted: Don't shut down your listing, don't remove the photo or the text or whatever it is they're claiming is infringing until you talk to a lawyer because you can just make things worse by overreacting.
[00:11:29] Scott: If let's say that there is someone that feels as though that you've infringed on their trademark, patent, whatever it is and they put that claim into Amazon a lot of times Amazon they don't even play, they just go ahead and pull down the listing or pause it or suppress it or whatever. Has that what you've seen as well? They don't really let you explain until they figure it out and then they'll put it back up. Have you seen that differently?
[00:12:02] Ted: Yeah. You're absolutely right Scott. Amazon they do take a look at things and if it appears to them that there may be a meritorious complaint of infringement, they'll pull the photos or they'll pull the listing. That's right. They'll suspend it. I see this most often with copyright complaints. It can also be with a trademark complaint. If it's really clear that you're infringing on somebody's trademark especially if it's a well-known famous brand they'll definitely pull your listing right away.
[00:12:37] Scott: Got you. Now…
[00:12:40] Ted: it's pretty easy because somebody can say, look here's my photo on my website and this guy is infringing it because here’s the same photo.
[00:12:52] Scott: That to me just pretty much stupidity anyway. If someone's got to straight up rip someone’s photo off of their website I just think that's bad business anyway but that's besides the point. I mean for a trademark or like copyright we are talking like picture-type stuff. We're talking about like that's my picture I created. I get people that say, “Scott should I watermark my picture?” Well, in my advice to that always is well, I'd be careful with putting a stamp on your picture because Amazon doesn’t want that on the main image that is. The secondary images I believe that you can do that. I'm not 100% sure but I believe that you can but your main image you can't.
In that case that's why it's probably the best practice to have a picture of your picture that has your brand name on it. Then this way here you're protected here. Again, I know that this isn't really the topic for today but just to let people know because I get that question a lot like, “Should I watermark my pictures?” What’s your thoughts on that?
[00:13:50] Ted: Don't watermark your pictures. Amazon doesn't like it and honestly you're not getting much bang for your buck to do that. I agree with you 100% your product images should already have your brand name on the product so that's already part of the image and that's not only allowed by Amazon but it's something that I certainly encourage as intellectual property lawyer.
[00:14:20] Scott: Yeah. I think even on the box or the packaging if that's on your picture try to make it seen but again you don't want to force it. I totally agree. You've been seeing those and you said this the day we were having coffee and stuff too, I'm just seeing a lot of bullying going on with these sellers and they're trying to use this legal mumbo jumbo to try to scare the other seller to get them off and like you're saying people will then panic or overreact. What's the thing I should look for in a cease and desist letter if I get it? What should I look at that makes me say like, “This thing might be from an attorney,”?
[00:14:58] Ted: First of all, where is that cease and desist coming from? Is it from a real law firm that you can look up and you can check on the state bar? Every state has a state bar website and you can look up the names of the attorneys. A real attorney is never going to hide his or her identity. They want you to contact them. They're not going to play hide the ball. On the other hand, if you get a letter or an email or a message through Amazon from another seller sometimes they sort of pretend to be an attorneys, they'll quote the law and they'll tell you about all the terrible consequences that are going to happen to you if you do not cease and desist.
Those can be taken with a little more grain of salt. However, don't just ignore them because if you ignore them then the other seller is more likely to take the next step which is to report the matter to Amazon. Don't ignore those but instead politely reply back. Everything polite in professional language. Reply back to them and ask them, say, “Do you have any evidence of reporting you claims? Would you please send me your trademark registration? Would you please send me your copyright registration?”
If they're legit they will send you that stuff and then you should probably again talk to your lawyer, you can assess whether this is a legitimate claim or it isn’t and take an appropriate action and write them back. Sometimes they will have called to your attention something that is legitimate and it’s good that that they've notified you privately without getting Amazon involved because that gives you an opportunity to correct the situation and thank them for calling it to your attention.
[00:16:59] Scott: I agree.
[00:17:00] Ted: That's not bullying, that's just doing the polite thing of notifying another seller that hey, you may not have noticed but this infringes upon our intellectual property rights. Then we all respect one another and that’s good. A lot of times again just judging from the fever pitch or the tone of message or an email give it someone that's going overboard and starting a new chapter and verse and being really threatening to you there's a pretty good chance that it’s not a legitimate claim. It's something again that you should always respond to. Don't just ignore them.
[00:17:43] Scott: Okay. That's basically like we're saying. If you have someone that says that you're using their trademark, that you're using their patent or any of that stuff just again you want to respond to it and just again, like you said whether it's just show me your thing, show me the copyright, show me the certificate, show me this, show me that. Again, you’re just say like, “Okay you're listening I don't believe that you have that.” Now, if your own, well then you just say oh I'm sorry you must be mistaken because here's my certificate, whatever. You can always throw that back. Right?
[00:18:22] Ted: Sure again.
[00:18:23] Scott: That would be the best bet.
[00:18:26] Ted: Politely as possible.
[00:18:27] Scott: Yeah, politely as possible. Exactly. Now, what happens if that person… Have you seen this happen where they'll go just directly to Amazon? Even if they don't have a patent or even if they don't have a direct claim they're just doing it to try to see if Amazon will actually listen to them and take your listing down?
[00:18:46] Ted: Yeah, here's another really life story. I had a client that's in a product category that involves fabrics that have prints on them. The prints on fabrics can be copyrighted but you need to register that. She got a notification from Amazon that pulled her product listing just out of the blue. It was a copyright claim so she contacts… In the notifications they say “contact the right's owner.” She contacted the right’s owner and they sent her back this blistering thing about, “Well you've infringed our copyright and it's terrible that you did this and we're never going to withdraw the claim to Amazon because of what you did.”
She got me involved and so pretty soon it's lawyer talking to lawyer. I kept asking them, “Please show me your copyright registration certificate.” They hinted that there was a registration and well, “Please send me the application at least, at least tell me that you’ve applied for it.” After weeks of going back and forth of these people it finally becomes clear that they have not registered the copyright, they have not even applied to register the copyright. Well, guess what? Somebody lied to Amazon in their report of infringement because Amazon is not going to do anything unless you've actually registered the copyright to print of fabric.
In that case there are a couple of things you can do. Obviously she escalated and got a lawyer involved right away because that can be a law suit. We could sue them for damages for making a false infringement report to Amazon. She's lost a lot of money and she had a product that was doing well on Amazon, had high page rank and all of a sudden she's lost, so that's a viable asset damages.
[00:20:58] Ted: The other thing you can do with copyright complaint is send a DMCA counter notice. Probably you, the most of your listeners know what the DMCA is but you can send a DMCA counter notice. There are certain requirements and it’s got to be signed under penalty of perjury but you can send that back to Amazon and say, “Hey we think that this was not a legitimate claim and that you should restore the ASIN.” If the other party does not demonstrate to Amazon that they have actually filed suit to enforce the copyright within ten days, then your listing comes back on. It's a good way, that's the law and Amazon will follow the law, the DMCA in this case. Remember if their claim has merit, if you actually are violating their copyright and you're dealing with somebody who has lawyers and is litigious they might just file a lawsuit. That’s never a good thing to have happen to you.
[00:22:15] Scott: I think anyone anyways, honestly you kind of probably know when you're finding these products if there's something that is patented or there's something… You get a good idea of the brand of all of that. There's common sense that says just do your own checking and you probably figure that you're okay. Now, the best bet is to obviously have a clean look if you have any doubts at all with an attorney, have a clean search done. But in the same breath, it's like if you know that you’re teetering on that or you’re like, “Yeah I don't know.” You might gone one of them one day. Then to call you to say, “Hey, Ted now what?” You are like, “Well you should have did your research in the beginning.” I would just say people too just be smart out there. If you have any doubts at all, then definitely have someone professionally look into that before you go ahead and invest in that because you don't have to afterwards fight it and then find out that you did infringe on something. I just wanted to throw that out there Ted.
[00:23:25] Ted: Yeah, it's a tough call. You're investing a lot of money in researching and trying to launch a product and nobody wants to invest money in a patent search only to find out that well, maybe there is a problem because it feels like you've wasted a bunch of money that could otherwise be spent on launching another product. This is answer prevention and maybe worth a pound of cure.
[00:23:58] Scott: I know, I agree. Again, that's I think you look at it at certain products and you're like, “I can almost tell this is just a generic type thing that I might go ahead and make my spin on it.” Again, for making our own spin on it, that makes a lot easier to prevent this from happening because you're putting your own unique spin on it. You're in a sense, you're almost vulnerable because you're now maybe saying like well I've just created something that's unique. I could patent myself and someone else could just copy without me being able to sue them or to counter against them but in the same breath at least you know that you're protected as far as you're not going to be the one getting sued if you can make that thing different.
Moving forwards, I think that's really, really important for people to understand making that different. Is there any other things you wanted to address? Any other stories that you wanted to mention? I forget exactly some of those other discussions that we had at the table? We had so many. Is there anything else that you wanted to prepare any new sellers or even sellers that might be starting to catch their stride a little bit, that can help them prevent anything or things to look for when someone contacts them? Is there anything else that you can think of?
[00:25:12] Ted: Yeah. An important skill that every Amazon seller should learn is how to respond to notices from other sellers and notices from Amazon, I should say messages from other sellers. Again, I cannot underscore enough how vital it is that the people learn how to write messages and emails that have a professional tone to them, that are not snarky or overconfident. We can take the right tone or the wrong tone in our correspondence with others on Amazon and it can get us in trouble.
I've seen some of my clients respond to legitimate cease and desist messages from other sellers in ways that were highly unprofessional, that were really off the chart and not only did that get them reported to Amazon for infringement but then they also get reported for violations of the community rules. In the guideline they tell you, “Be respectful, be on topic, don't engage in any conduct that is demeaning to other sellers or to certainly not to customers,” that will get you off Amazon instantaneously. Conduct yourself in a business-like fashion in all of your correspondence. Don't assume the worst. A lot of times, sellers will make a complaint of infringement and maybe it's not meritorious but they've made the complaint in good faith because visually they may have seen something and they think, “Yeah that violates my trademark, that violates my copyright.”
[00:27:19] Ted: If they've made a mistake, just call it to their attention again in a professional way without skyrocketing and see if you can get them to withdraw the complaint. Anybody who's been selling on Amazon for any length of time eventually they're going to get a notification or a warning from Amazon and all those warnings especially the ones that involve infringement complaints they almost always tell you contact the rights owner, here's his or her email.
Sometimes they even give you a telephone number and have them withdraw the complaint. Now, most of them won't withdraw the complaints but I tell you if you email them and you're sincere and hey I’ve just been trying to make it right let me work with you. Again, if your tone is correct and you're sincere and you're willing to work with them, they're going to be much more likely to cooperate with you and pull that complaint off of Amazon which is the best outcome for everyone.
[00:28:31] Scott: No, I agree. I think as much as we don't want to because we're upset but I think like you said I think especially your first message to them definitely try to be just respectful and hoping that they will respond in a respectful manner as well. I definitely agree with that. One other thing I wanted to touch on and I probably touched on this a little bit earlier, but like okay, let's say for example and this happened to someone that we both know and we won't mention any names but he had an issue where someone hijacked his listing and he went ahead and noticed that they basically had a whole bunch of inventory and he…
Normally you're supposed to buy once so you can cross reference what it is but he wanted to remove all their stock. Thinking that it's counterfeit purchases just about all of their inventory and that's really not the right thing to do and I want you to explain why and then maybe from there what people should do in that situation which I can actually link back to the other episode that we talked about this but just like a quick 30 second thing that they should do. In that case, you don't want to do that. You don't want to go ahead and buy out your competitor's inventory if they're on there, if they're on your listing.
[00:30:00] Ted: That was an interesting situation and you're right. Doing test buys involves making a single purchase from the ASIN or in some cases it's important to get some purchases from children as well. Usually just from the parent ASIN but from some children as well. Making one purchase. That's what a test buy is in the Amazon book. If you're buying large volumes of client’s inventory, A it's against the community guidelines. B it looks like you're trying to manipulate the page rank because you're manipulating the sales on your ASIN. That's a no, no with Amazon. It can actually get you suspended.
It's one thing if you got a hijacker on there and he's got one or two or three in his inventory. Well, that might be just a guy who picked him up, he’s doing retail arbitrage or something and he's so fine, buy those out, it's not a test buy. You’re buying those out. There's no real harm in that but in buying somebody's inventory in bulk is a very risky thing to do.
[00:31:26] Scott: Let's go back in time. It was prime day and because of that he had a good seller, sells about 70 to 80 units a day sometimes more. Then this hijacker came on a day before this happened and had a whole bunch of inventory. He was ready to start selling and technically the seller got upset and said you know what, “I'm not going to allow you to do that. I'm going to then send these back, return these after the fact and tell them that they were basic counterfeits.” It did have a happy ending, he didn't get in trouble for it and he did get his money back from that but like you said it was very risky. It's something that you wouldn't necessarily advise. I think him looking back at that too I don't think he would have done it that way now. I think he panicked.
[00:32:33] Ted: Yeah, thank God it did turn out okay but that's a very risky move and why risk your account over something like that.
[00:32:42] Scott: Now, I just wanted to throw that out there because anyone else thinking about doing that, I think like Ted said just relax, take a deep breath and then make that decision. Don't just all of a sudden react especially with words, through an email or even like doing a buy. A test buy is one thing but going ahead and try to buy all of their inventory that's a whole another story. Anyway, I just wanted to throw that out there because I've been meaning to talk to you about that too. We never even talked about that at our coffee date which I wanted to.
I forgot and I just remembered so I said what the heck so let's talk about it now. All right, Ted I think that's pretty good here talking about how we can prevent ourselves from being bullied. I think it's really what it is and don't let the sellers out there that don't have any rights to be bullying us and really to go out there and make sure that you're prepared with the knowledge of what to do. We've covered that but then also if you don't know, reach out to an attorney of some kind. Whether that's you or any other attorney. We're really just doing this to bring awareness to this so this way where we can help other sellers when they come to this, if they ever come to this. Then this way here you can have this in your tool box when and if that happens. Is there anything else you wanted to wrap up with Ted before we wrap this episode up?
[00:34:02] Ted: Well, sure. I again need to underscore that anything that I've said here today is not attorney advice. This is just general information and if you have a real situation, real facts that you need to discuss with an attorney I strongly recommend that you do so. Hopefully I've given your listeners an idea as to when it's a good idea to contact an attorney and when something might just be less of a threat.
[00:34:35] Scott: How can they get hold of you again Ted?
[00:34:38] Ted: Email is the best way, firstname.lastname@example.org or give me a call 626-993-7000.
[00:34:46] Scott: Okay cool and I'll put it in the show notes and we'll put the other episodes that you've been on in the show notes as well. We talked about hijacking, we talked about patents and stuff like that too. I'll link that all up. Definitely make sure that you guys just understand that don't overreact and then from there just assess the situation and then move to the next thing. Don't overreact.
Ted I want to thank you once again. It's always a pleasure, so glad that we got to sit down, face to face, talk not just about Amazon. We talked about life and business and what we're thinking about doing in the future financially but not even. We talked about our families and what we want to do when we move onto our next phase in life. It was really, really fun and I really appreciate you and I know everyone listening does as well. Thanks again and I do appreciate you bud.
[00:35:34] Ted: Thank you Scott. Take care.
[00:35:37] Scott: All right. There you go. Another great conversation with my good buddy Ted Limus and it was really fun to hang out with him in person and just have a really good chat and it wasn't just about this. It was about life and I think it was awesome to be able to meet up with people that once you start something in business you become friends and that goes for all of us out there. A lot of us are out there in Facebook groups or in forums or in different places like these are technically people that you can network with and that you can learn from and I really, really encourage all of you including myself to continue to do that because it's really, really important.
When you get to meet people in person it's really quite awesome if I don't say so myself which is going to lead me perfectly into saying that we're going to be meeting in person, actually 30 of us, TASers that is in the Phoenix Arizona. That's coming up really, really soon. Depending on when this airs which it should air a couple of weeks before the event there may or may not be spots left. If there are spots left and you wanted to attend, head over to theamazingseller.com/live and you can get all the details there. Now, if it is technically sold out, which it may be at that time just go ahead and get on the announcements list and you'll be notified if there's any cancellations or if we do one in the future. Definitely go check that out. If you want to hang out with us, I'm talking live like in person like for two full days.
Definitely go check that out. Now, you can split it up. You can go day one or day two or you can do both. A lot of people are doing both but just check it out if you're interested. We'd love to hang out with you for a day or two and we can really dig into your business and just have some good conversations too because I'll tell you when you attend events like this or just meet people in person whether it's a small little meet up, you really get to know the people that are a lot like you. I'm telling you those relationships are going to take you so much further down the line because you have these resources to pull from. You also get the support of those people.
[00:37:41] Scott: Really, really I can't stress that enough. It’s really, really important. Again, perfect example is me being able to hang out with Ted in person and it was fun. A quick little story. He shows up and he's got his khaki shorts on and his, I forget if it was flip flops or something and he says, “Hey. Excuse the outfit. I didn't feel like getting into my attorney clothes today.” I said, “You know what, I'm glad you didn't because that would have made me feel little uncomfortable,” and we had a good chuckle about that. Speaking of that though, Ted is probably going to listen to this back.
Him and I talked a little bit. I was busting on him a little bit. We got to upgrade that mic Ted. I think we talked about that. We might have to get on him out there in TAS land. Come on, some of that attorney money, let's get a new mic. Let’s get a better connection. All right, anyway. I guess that's what you can do when you're friends. You can have fun with each other.
Guys, that's it. That's going to wrap up this episode, the transcripts can be found at theamazingseller.com/272. The show notes will be there. You can also reach out to Ted from the show notes page or just go to TedLawFirm.com, again that's TedLawFirm.com and just reach out to him and if he can help you great. If he can't he'll direct you to where you can get some assistance.
All right. That's it guys. That's going to wrap it up. Have an awesome amazing day and remember I'm here for you, I believe in you and I'm rooting for you but you have to, you have… Come on. Say it with me, say it loud and say it proud, “Take action and press on my friends.”
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