Estta789688 12/16/2016 in the United States Patent And

Home , Concealer, Lip liner, Love Cosmetics

Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov ESTTA Tracking number: ESTTA789688 Filing date: 12/16/2016 IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD Proceeding 86779063 Applicant Crunchi, LLC Applied for Mark CRUNCHI Correspondence DEREK FAHEY Address THE PLUS IP FIRM PLLC 101 NE 3RD AVENUE SUITE 1500 FORT LAUDERDALE, FL 33301 UNITED STATES [email protected],[email protected] Submission Appeal Brief Attachments Appeal Brief 96779063 - final.pdf(2692900 bytes ) Filer's Name Derek Fahey Filer's e-mail [email protected] Signature /Derek Fahey/ Date 12/16/2016 IN THE UNITED STATES PATENT AND TRADEMARK OFFICE

U.S. Application Serial Number: 86779063 Customer Number: 10590 Applicant: Crunchi, LLC Mark: CRUNCHI Law Office: 115 Examining Attorney: Bridgett G. Smith ======

Commissioner for Trademarks Trademark Trial and Appeal Board P.O. Box 1451 Alexandria, VA 22313-1451 APPEAL BRIEF

Dear Sir or Madam:

Crunchi, LLC appeals to the Trademark Trial and Appeal Board the refusal to register the

mark depicted in Application Serial No. 86779063 for CRUNCHI in classes 003 and 035. In

response to the Final Office Action, the Applicant submits the following.

RESPONSE TO SECTION 2(D) REFUSAL

The refusal to register has been appealed as to Class 003 for Anti-aging moisturizer;

Aromatic body care products, namely, body lotion, shower gel, cuticle cream, shampoo,

conditioner, non-medicated lip balm, soap, body polish, body and foot scrub and non-medicated

foot cream; Baby hair conditioner; Baby lotion; Baby powders; Baby shampoo; Baby wipes; Bar

soap; Bath soaps; Bath soaps in liquid, solid or gel form; Beauty serums; Blush pencils; Body

cream; Body cream soap; Body creams; Body deodorants; Body masks; Body spray used as a personal deodorant and as fragrance; Body sprays; Body sprays, namely, water in atomized containers used to produce a cooling effect; Cleaner for cosmetic brushes; Concealers;

Cosmetic creams for skin care; Cosmetic pencils; Cosmetic sunscreen preparations; Cosmetics and make-up; Cosmetics in general, including perfumes; Cosmetics, namely, compacts;

Cosmetics, namely, lip primer; Creamy foundation; Deodorant for personal use; Deodorants

and antiperspirants; Deodorants for body care; Exfoliant creams; Eye cream; Eye pencils;

Eyebrow colors; Eyebrow cosmetics; Eyebrow gel; Eyebrow pencils; Eyeliner; Eyeliner pencils;

Eyeliners; Eyeshadow; Eyeshadows; Face and body creams; Face creams; Face powder; Facial cleansers; Facial concealer; Facial make-up, namely, pressed foundation, primer, cream foundation, liquid foundation in compact or stick, and tinted moisturizer; Facial moisturizer with

SPF; Facial moisturizers; Foundation; Foundation make-up; Foundations; Hair conditioners for babies; Hand soaps; Lip balm; Lip cream; Lip gloss; Lip gloss and wands therefor sold as a unit; Lip gloss palette; Lip liner; Lip stains; Lipstick; Lipsticks; Liquid foundation (mizu- oshiroi); Loose face powder; Lotions for face and body care; Lotions for babies; Make-up foundation; Make-up foundations; Make-up pencils; Make-up primer; Make-up remover; Make- up removing milk, gel, lotions and creams; Moisturizing body lotions; Moisturizing creams;

Night cream; Non-medicated anti-aging serum; Non-medicated balms for use on babies, diaper

rash or eczema; Non-medicated facial and eye serum containing antioxidants; Non-medicated

serums for use on eyes; Non-medicated skin care creams and lotions; Non-medicated skin care

preparations, namely, eczema balm, eczema cream; Pencils for cosmetic purposes; Perfume;

Perfumes and colognes; Pressed face powder; Shampoos for babies; Skin bronzer; Skin bronzing

creams; Skin care products, namely, non-medicated skin serum; Skin moisturizer; Skin moisturizer masks; Skin moisturizing gel; Soaps for babies; Solid powder for compacts;

Sunscreen cream; Sunscreen creams; Tinted moisturizers; and, in class 035 forOn-line retail

store services featuring cosmetics, make-up, skincare, baby, and beauty products; On-line wholesale store services featuring cosmetics, make-up, skincare, baby and beauty products. The

Trademark Office has refused to register Applicant’s mark in classes 003 and 035 because of a likelihood of confusion with U.S. Registration No. 4760421 for K’RUNCH in class 003 for

Cosmetic body scrubs for the lips; Cosmetics, namely, lip repairers; Exfoliants for lips; Lip polisher. 1Applicant respectfully disagrees and provides its arguments below in support thereof.

I. The Marks Have Different Distinct Commercial Impressions

When comparing marks, they must be examined in their entireties. Sears, Roebuck & Co. v. Hoffman, 119 U.S.P.Q. 137 (C.C.P.A. 1958). When looking at the Cited Registration vs. the

Applicant’s mark in their entireties, the commercial impressions are substantially different. The

Examining Attorney contends in her final office action that “the only real difference in the

phonetic sound of the marks is the addition of the ‘I’ at the nd e of the proposed mark.”

1 The Examining Attorney withdrew the refusal based on Registration No. 4,407,449 for BERRY CRUNCH in international class 003, namely for Bath gel; Bath salts; Bath soaps; Body cream; Body lotion; Body oil; Body scrub; Body sprays; Bubble bath; Dusting powder; Foot scrubs; Lip balm; Lip gloss; Liquid soap; Nail polish; Reeds and scented oils sold as a unit for use in room scent diffusers in her Denial of the Request for Reconsideration of November 22, 2016.

However, the Examining Attorney fails to recognize the significance of the additional letter “I”

in the proposed mark, which creates a distinct overall commercial impression very different than

that of the Cited Registrations.

For example, in Champagne Louis Roederer S.A. v. Delicato Vineyards, 148 F.3d 1373

(Fed. Cir. 1998), although two highly similar marks were usedn i connection with identical

goods, (“CRISTAL” and “CRYSTAL CREEK”), the Federal Circuit affirmed the TTAB’s

decision to allow registration because the sound, connotation nd a commercial impression

differed. See also, In re Hearst Corp., 25 U.S.P.Q.2d 1238, 1239 (C.A.F.C. 1992) (“THE

VARGA GIRL” was sufficiently different from the registered mark “VARGAS” to permit

registration even when the marks were for virtually identicalroducts); p Anderson, Clayton & Co.

v. Christie Food Prods. Inc., 4 U.S.P.Q.2d 1555, 1557 (T.T.A.B. 1987) (The common use of one

word insufficient to establish likelihood of confusion, where marks include other components,

even when used in identical or similar goods and services.).

In the Applicant’s case, the commercial impression between the Applicant’s mark and the

U.S. Registration No. 4760421 for K’RUNCH are quite different. The word K’RUNCH of U.S.

Registration No. 4760421 conveys a very different meaning than the word CRUNCHI in the

Applicant’s mark. A significant distinctiveness can be created even if the marks in question differ only with respect to a single letter. See Jacobs v. Int’l Multifoods Corp., 212 U.S.P.Q. 641

(C.C.P.A. 1982) (“BOSTON SEA PARTY” and “BOSTON TEA PARTY”); Lever Brothers

Company v. Babson, 94 U.S.P.Q. 161, 164 (C.C.P.A.1952) (“SURF” and “SURGE”). The “I”

portion of the word CRUNCHI transforms the word “crunch” into a completely different word having a different meaning than the word “crunch”. Applicant’smark uses a homophone word

with a double meaning, resulting in an artistic, but wholesome, appearance for Applicant’s mark.

CRUNCHI is thus a trendy form of crunchy.

The word “crunchy” is slang to describe “health or environmental issues” and is short for

“crunchy granola (considered as natural and wholesome).” See Exhibit A. The word “crunchy”

is an adjective meaning “having a healthy diet and way of living; natural; earthy: She’s a crunchy

granola girl….” Id. The Free Dictionary.com further defines slang crunchy as “[i]f they’re

crunchy types, consider camping out along the way instead of staying at motels.” See Exhibit B.

Again this signifies someone in touch with nature, i.e. natural or wholesome. Wiktionary defines

crunchy as “[h]aving sensibilities of a counter-culture nature lover or hippie; derived from the

concept of crunchy granola.” See Exhibit C. Stated differently, natural is the theme of the slang word crunchy. Finally, Urban Dictionary defines crunchy as:

Used to describe persons who have adjusted or altered their lifestyle for environmental reasons. Crunchy persons tend to be politically strongly left- leaning and may be additionally but not exclusively categorized as vegetarians, vegans, eco-tarians, conservationists, environmentalists, neo-hippies, tree huggers, nature enthusiasts, etc. Also used to describe establishments where alternative foods and products are sold, i.e. natural food stores. Modified derivative of granola.

See Exhibit D. Respectfully speaking, there is an abundance of evidence that the Examining

Attorney has not considered when looking at Applicant’s mark. CRUNCHI gives a natural, wholesome, organic commercial impression. This is further demonstrated in Applicant’s website located at www.crunchi.com wherein the Applicant defines the word CRUNCHI as “socially,

environmentally and health conscious”. See Exhibit E.

On the other hand, the mark K’RUNCH of U.S. Registration No. 4760421, assuming arguendo that K’RUNCH is pronounced similar to the word “crunch”, has a very different

commercial impression. The word “crunch” is a verb or noun and means “to crush or grind

noisily … to chew with a crushing sound…” See Exhibit F. Additionally, it appears the

commercial impression intended to be given by the mark K’RUNCH is intended to be associated

with some type of pirate-like theme. See Exhibit G. The specimen filed with the USPTO

mentions that the mark K’RUNCH is one of three products of “JAMESON’S” “LIP BOOTY”,

and that K’RUNCH comes in the BLACK BOX packaging. Id. Applicant submits that the term

BOOTY is a fairly common term associated with pirates. See Exhibit H. Additionally the packaging has two outward facing opposing pirate style swords and stylized lettering in stylized font that further gives the impression of a pirate like atmosphere. Applicant submits that the intended sound of U.S. Registration No. 4760421 for K’RUNCH is a long R (as if spoken by a pirate, i.e), which when in Registration No. 4760421 for K’RUNCH would actually sound like

KRRRRUNCH. This sound along with the pirate like theme commercial impression implied by

U.S. Registration No. 4760421 for K’RUNCH - a verb - has a very different commercial impression than the chic wholesome, natural and health conscious feelings given off by the

Applicant’s mark CRUNCHI.

Further, as it relates to class 035 for on-line retail store services, an apostrophe cannot be used on a domain website name, thus mark K’RUNCH cannot be used as a domain name

(www.k’runch.com). On the other hand, Applicant’s mark CRUNCHI can be used as a domain

name (www.crunchi.com). This further signifies the importance of the differences between the

marks given the use of an apostrophe in the cited registration. Therefore, the textual portions,

commercial impressions and overall look of the marks, when viewed in their entireties, are quite

different and invoke different images in consumers’ minds. Therefore, Applicant’s mark would

not confuse the consumer as compared to U.S. Registration No. 4760421 for K’RUNCH.

II. Textual Portions of the Marks Differ

Further, a significant distinctiveness can be created even if the marks in question differ

only with respect to a single letter. See Jacobs v. Int’l Multifoods Corp., 212 U.S.P.Q. 641

(C.C.P.A. 1982) (“BOSTON SEA PARTY” and “BOSTON TEA PARTY”);Lever Brothers

Company v. Babson, 94 U.S.P.Q. 161, 164 (C.C.P.A. 1952) (“SURF” and “SURGE”).e Th marks must be considered in the way they are used and perceived, with all components given appropriate weight. Id. Similarity of the marks in one respect – sight, sound, orning mea – will not automatically result in a determination that confusionikely is l even if the goods are identical or closely related.See In re Thor Tech, Inc., 90 USPQ2d 1634, 1635 (TTAB 2009); In re White

Swan Ltd., 8 USPQ2d 1534, 1535 (TTAB 1988).

The textual portions of the marks are different and also sound quite different. Indeed, the

letters “crunch” is a component of both marks. However, the word of the Applicant’s mark is

CRUNCHI while the Cited Registration begins with K’. Further, the Applicant’s use of the “I”

at the end of the mark, which as more fully explained above, creates a very different commercial

impression. The textual portions of Applicant’s mark CRUNCHI and the Cited Registration

K’RUNCH differ in size, parts of speak, punctuation, and look romf the textual portions of the

mark of the Cited Registration. As a result, therefore, there can be no likelihood of confusion

between Applicant’s mark and the mark of U.S. Registration No. 4760421 for K’RUNCH.

III. Conclusion

Based on the arguments provided herein, there is no likelihood of confusion between the

applied for mark in international class 003 and 035 and U.S. Registration No. 4760421 for

K’RUNCH in class 003. Therefore, the Applicant’s Mark should be deemed capable of registration.

By: /Derek Fahey/ Derek Fahey, Reg. No. 66,720 Customer No. 10590 The Plus IP Firm, PLLC 101 N.E. 3rd Avenue, suite 1500 Fort Lauderdale, FL 33301 954-332-3584 (voice) [email protected]

EXHIBIT A

 Dictionary.com (http://www.dictionary.com/)

(http://www.dictionary.com/)

(http://www.dictionary.com/wordoftheday/) definitions  crunchy granola 

Toll Brothers New Homes Find the home of your dreams with Toll Brothers luxury home builders Go to tollbrothers.com crunchygranola

[kruhncheegruhnohluh]

Word Origin

adjective, Slang.

1. characterized by or defining oneself by ecological awareness, liberal political views, and support realwordsinthispokemonquiz/) or use of natural products and health foods. crunchy

[kruhnchee]

adjective, crunchier, crunchiest.

1. crisp; brittle.

2. Sometimes, crunchy granola. Informal. healthconscious and environmentally aware: one of those crunchy guys who insists on biking to work.

Origin of crunchy

18901895 Pokémon Words (http://blog.dictionary.com/catchthe 189095; crunch (http://www.dictionary.com/browse/crunch) + y (http://www.dictionary.com/browse/y)1

Related forms

crunchily, adverb

crunchiness, noun

Dictionary.com Unabridged Based on the Random House Dictionary, © Random House, Inc. 2016. Cite This Source

Word Origin and History for crunchygranola crunchy adj. realwordsinthispokemonquiz/)

1892, from crunch (/browse/crunch) + y (/browse/y) (2). Student slang sense of "annoyingly intense about health or environmental issues" is by 1990, short for crunchy granola (considered as natural and wholesome); not entirely pejorative at first. Related: Crunchiness.

Slang definitions & phrases for crunchygranola crunchy adjective

Having a healthy diet and way of living; natural; earthy: She's a crunchy granola girl/ drew directly on their college days at Connecticut's slightly crunchy (as in granola) Wesleyan University

(1980s+ Students) Pokémon Words (http://blog.dictionary.com/catchthe noun

Aperson who is disagreeably intent on environmental matters, personal bodily simplicity, walking

About (http://content.dictionary.com/) Terms & Privacy (http://www.dictionary.com/terms)

EXHIBIT B

Crunchy definition of crunchy by The Free Dictionary http://www.thefreedictionary.com/crunchy crunchy Also found in: Thesaurus, Medical, Idioms, Encyclopedia, Wikipedia. crunch·y (krŭn′chē) adj. crunch·i·er, crunch·i·est 1. Making a crunching or cracking sound, as when chewed; crisp: crunchy fresh vegetables. 2. Slang Crunchygranola: "If they're crunchy types, consider camping out along the way instead of staying at motels" (Jennifer Hanson).

crunch′i·ness n.

American Heritage® Dictionary of the English Language, Fifth Edition. Copyright © 2016 by Houghton Mifflin Harcourt Publishing Company. Published by Houghton Mifflin Harcourt Publishing Company. All rights reserved. crunch•y (ˈkrʌn tʃi) adj. crunch•i•er, crunch•i•est. crisp; brittle.

[1890–95]

crunch′i•ness, n.

Translations Select a language: Spanish / Español ▼

crujiente

crunchy [ˈkrʌntʃɪ] ADJ (crunchier (compar) (crunchiest (superl))) → crujiente

Collins Spanish Dictionary Complete and Unabridged 8th Edition 2005 © William Collins Sons & Co. Ltd. 1971, 1988 © HarperCollins Publishers 1992, 1993, 1996, 1997, 2000, 2003, 2005 crunch (krantʃ) verb to crush noisily (something hard), with the teeth, feet etc. She crunched sweets all through the film.mascar, ronzar, x hacer crujir Love words? noun the crunch of gravel under the car wheels.crujido Subscribe to our free Word of the Day email! ˈcrunchy adjective Email thick crunchy biscuits.crujiente Go Kernerman English Multilingual Dictionary © 20062013 K Dictionaries Ltd.

Disclaimer All content on this website, including dictionary, thesaurus, literature, geography, and other reference data is for informational purposes only. This information should not be considered complete, up to date, and is not intended to be used in place of a visit, consultation, or advice of a legal, medical, or any other professional.

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EXHIBIT C

crunchy

Definition from Wiktionary, the free dictionary

Contents

1 English 1.1 Etymology 1.2 Pronunciation 1.3 Adjective 1.3.1 Synonyms 1.3.2 Translations

English

Etymology crunch + y

Pronunciation

IPA(key): /ˈkɹʌntʃi/

Adjective crunchy (comparative crunchier, superlative crunchiest)

1. Likely to crunch, especially with reference to food when it is eaten. 2. (slang) Having sensibilities of a counterculture nature lover or hippie; derived from the concept of crunchy granola.

San Francisco is a very crunchy town.

Synonyms

crispy

Translations

likely to crunch [show ▼]

Retrieved from "https://en.wiktionary.org/w/index.php?title=crunchy&oldid=39160014"

Categories: English words suffixed with y English terms with IPA pronunciation English lemmas English adjectives English slang This page was last modified on 22 July 2016, at 00:59. Text is available under the Creative Commons AttributionShareAlike License; additional terms may apply. By using this site, you agree to the Terms of Use and Privacy Policy.

EXHIBIT D

EXHIBIT E Safe, High Performance Cosmetics & Makeup | Crunchi.com Page 1 of 4

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crunchi [ kruhn che ] adjective;

1. Socially, environmentally, and health conscious. To seek knowledge, become empowered, and transform lifestyles. 2. One who does not compromise health for beauty and who does not compromise beauty for health. 3. To be smart. To be conscious. To be beautiful.

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https://crunchi.com/our-story/ 10/17/2016 EXHIBIT F  Dictionary.com (http://www.dictionary.com/) Thesaurus.com (http://www.thesaurus.com/)

(http://www.dictionary.com/)

(http://www.dictionary.com/wordoftheday/) definitions  crunch 

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crunch realwordsinthispokemonquiz/) [kruhnch]

Examples Word Origin See more synonyms on Thesaurus.com (http://www.thesaurus.com/browse/crunch)

verb (used with object)

1. to crush with the teeth; chew with a crushing noise.

2. to crush or grind noisily.

3. to tighten or squeeze financially: The administration's policy seems to crunch the economy in order to combat inflation.

verb (used without object)

4. to chew with a crushing sound. Pokémon Words (http://blog.dictionary.com/catchthe 5. to produce, or proceed with, a crushing noise.

noun

6. an act or sound of crunching.

7. a shortage or reduction of something needed or wanted: the energy crunch.

8. distress or depressed conditions due to such a shortage or reduction: a budget crunch.

9. a critical or dangerous situation: When the crunch comes, just do your best.

Idioms

10. crunch numbers, Computers. a. to perform a great many numerical calculations or extensive manipulations of numerical data. b. to process a large amount of data.

Also, craunch (http://www.dictionary.com/browse/craunch).

Origin of crunch

17951805 realwordsinthispokemonquiz/)

17951805; blend of craunch (http://www.dictionary.com/browse/craunch) and crush (http://www.dictionary.com/browse/crush)

Related forms

crunchable, adjective

Dictionary.com Unabridged Based on the Random House Dictionary, © Random House, Inc. 2016. Cite This Source

Examples from the Web for crunch

Contemporary Examples Pokémon Words (http://blog.dictionary.com/catchthe He added that last year, crunch year, had not adhered to this pattern.

(http://www.thedailybeast.com?Live From Art Basel (http://www.thedailybeast.com/articles/2010/06/17/livefromartbasel.html?source=dictionary) source=dictionary)Anthony HadenGuest (http://www.thedailybeast.com/contributors/anthonyhadenguest.html?source=dictionary) June 16, 2010

It took me just two bites to crunch and pop and slurp and swallow the whole thing, and I was crying as I did so.

(http://www.thedailybeast.com?Must Read Fiction: ‘Prague Fatale,’ ‘Derby Day’ and More (http://www.thedailybeast.com/articles/2012/05/09/mustreadfictionpraguefatalederby source=dictionary)dayandmore.html?source=dictionary) Malcolm Forbes, Hillary Kelly, Mythili Rao (http://www.thedailybeast.com/contributors/malcolmforbeshillarykellymythilirao.html? source=dictionary) May 8, 2012 To keep you honest with your resolutions, find Jenn Burke at crunch Fitness for personal training.

(http://www.thedailybeast.com?Gal With a Suitcase: New York's Best Pampering Spots (http://www.thedailybeast.com/articles/2011/02/11/traveltipsnewyorksbestpampering source=dictionary)spots.html?source=dictionary) Jolie Hunt (http://www.thedailybeast.com/contributors/joliehunt.html?source=dictionary)

British Dictionary definitions for crunch crunch /krʌntʃ/ verb

1. to bite or chew (crisp foods) with a crushing or crackling sound

2. to make or cause to make a crisp or brittle sound: the snow crunched beneath his feet realwordsinthispokemonquiz/) noun

Collins English Dictionary Complete & Unabridged 2012 Digital Edition © William Collins Sons & Co. Ltd. 1979, 1986 © HarperCollins Publishers 1998, 2000, 2003, 2005, 2006, 2007, 2009, 2012 Cite This Source

Word Origin and History for crunch v.

1814, from craunch (1630s), probably of imitative origin. Related: Crunched; crunching. The noun is 1836, from the verb; the sense of "critical moment" was popularized 1939 by Winston Churchill, who had used it in his 1938 biography of Marlborough.

Slang definitions & phrases for crunch crunch modifier

: : It's Crunch Time in the Havens noun 1. A crisis; a desperate climax; squeeze (/browse/squeeze): Then came the political conventions that summer, and more crunches/ A ''crunch'' is characterized by a skyrocketing of interest rates and a choking off of the availability of credit/ The ''crunch'' between press and Government is inevitable in American affairs (1930s+)

1. To process, usually in a timeconsuming or complicated way. Connotes an essentially trivial operation that is nonetheless painful to perform. The pain may be due to the triviality's being embedded in a loop from 1 to 1,000,000,000. "Fortran programs do mostly number crunching (http://www.dictionary.com/browse/numbercrunching)." 2. To reduce the size of a file without losing information by a scheme such as Huffman coding (http://www.dictionary.com/browse/huffmancoding). Since such lossless compression usually takes more computations than simpler methods such as runlength encoding (http://www.dictionary.com/browse/runlengthencoding), the term is doubly appropriate. 3. The hash character (http://www.dictionary.com/browse/hashcharacter). Used at XEROX (http://www.dictionary.com/browse/xerox) and CMU (http://www.dictionary.com/browse/cmu), among other places. realwordsinthispokemonquiz/) 4. To squeeze program source to the minimum size that will still compile or execute. The term came from a BBC Microcomputer (http://www.dictionary.com/browse/bbcmicrocomputer) program that crunched BBC BASIC source (http://www.dictionary.com/browse/source) in order to make it run more quickly (apart from storing keywords (http://www.dictionary.com/browse/keywords) as byte codes, the language was wholly interpreted, so the number of characters mattered). Obfuscated C Contest (http://www.dictionary.com/browse/obfuscatedccontest) entries are often crunched; see the first example under that entry. [Jargon File (http://www.dictionary.com/browse/jargonfile)] (20071112)

The Free Online Dictionary of Computing, © Denis Howe 2010 http://foldoc.org (http://foldoc.org) Cite This Source

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