Canadian Court Notes That Keyword Advertising On Competitor's Trademarks Is Not Deceptive

from the good-ruling dept

There have been lots of lawsuits over the concept of buying search ads based on a competitor's trademarked term as the keyword, and more and more courts seem to be realizing that there is nothing wrong with this, so long as the ads themselves are not designed to confuse users. It looks like a court up in Canada has agreed that there's nothing wrong with putting up ads on other's trademarked keywords, because the likelihood of confusion is minimal. In this case, the plaintiffs found someone who claimed he signed up for a class at the wrong school because of a keyword ad, but that wasn't that believable, as "the registration came after a 90-minute in-person interview and the completion of an admissions test."
The court sided with VCC, concluding that its use of competitor names in its keyword advertising strategy was unlikely to deceive potential students. The judge noted "where a student erroneously chooses to examine a VCC Inc. 'sponsored link' website instead of the website of the institution they originally wanted, I am satisfied the information readily available on the various VCC Inc. websites is more than adequate to inform the student that they are examining a VCC Inc. institution and not the one they were initially searching for."
Always nice to see common sense prevail in court.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Anonymous Coward, Jun 10th, 2010 @ 11:59pm

    Seems logical...

    I wonder what dastardly strategy the lawyers are devising to combat this common sense?

     

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  2.  
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    Anonymous Coward, Jun 11th, 2010 @ 5:35am

    Re: Seems logical...

    No web surfers left behind!

     

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  3.  
    identicon
    Iggy: Pepper Spray, Jun 11th, 2010 @ 6:36am

    Trademarks

    Not so sure about the common sense here... what's the point of having a trademark if you can't regulate its usage?

    Think fake rolex watches, fake iPods etc.

    You can protect a trademark in the physical world, why not on the internet.

     

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  4.  
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    Anonymous Coward, Jun 11th, 2010 @ 7:12am

    the ruling is weak, mostly because it is entirely dependent on the material on the destination website not being confusing to the visitors. it creates a standard that cannot easily be applied by companies like google, you would likely err on the side of caution and say "might be confused by someone" and remove the ads at the request of the copyright holder. its a poor judgement that muddies the waters more than clearing them up.

     

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  5.  
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    Anonymous Coward, Jun 11th, 2010 @ 7:15am

    Re: Trademarks

    Because like all imaginary privileges, the government gives and the government takes away. They're not actually physical things and are not subject to "natural rights". Any right you have to enforce their usage is granted by the government (supposedly to protect consumers from confusion) and is already better than you deserve.

    And trademarks are important for the market because they can help protect the consumer. However, in the case of advertisement, competitors using each others' trademarks actually helps the consumer more because it provides them with several alternatives to whatever service they were looking for.

     

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  6.  
    identicon
    Anonymous Coward, Jun 11th, 2010 @ 7:20am

    Re:

    I believe "idiot in a hurry" has been the rule of thumb in these cases for a while.

    If an idiot in a hurry google searches for Red LLC and the top link is Red LLC, and there is a sponsored link for Blue LLC, and instead of clicking on the link for Red LLC he clicks the link for Blue LLC, when he reaches Blue LLC's homepage, will he notice he is not where he thought he was going?

    The obvious answer to this is yes. Being an idiot in a hurry, he will scream at his computer, close IE, open a new IE window and try again, this time clicking on the Red LLC link.

     

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  7.  
    identicon
    Anonymous Coward, Jun 11th, 2010 @ 7:47am

    Re: Re:

    yes, but now they have created a standard that is entirely dependent not on a solid set of rules, but a murky concept of what that idiot in a hurry might think. for a company selling advertising, this would create a huge black hole of liablity, where they have to become judge and jury over something that cannot be qualified, yet they risk being in a lawsuit if they get it wrong.

     

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  8.  
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    Technopolitical (profile), Jun 11th, 2010 @ 7:57am

    "Always nice to see common sense prevail in court. "

    Seems more like the Canadian Law has a "bug" hole that needs a patch download.

    Pirate Lawyers = Prite geeks,

    , bottom feeding dwellers , who are a un-necessary evil in the "eco[nomic]- bio-system"

    ( or course that is only true Mike , if your post accurately reflects the real situation. , A big IF.)

    ======================
    ========================

     

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  9.  
    identicon
    Anonymous Coward, Jun 11th, 2010 @ 8:05am

    Re: Re: Re:

    And yes, lcc, this is an important thing to note. Laws need to be a solid set of rules. Laws that run on "gut feelings" are prone to the political and capricious nature of judges.

    I guess I was more explaining how the system works now, while you were pointing out its flaws. Ideally, I think there should be a list of conditions that would cause confusion, so in these cases, the judge must simply look at the list and see if any of the items qualify.

     

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  10.  
    identicon
    Anonymous Coward, Jun 11th, 2010 @ 8:06am

    Re: Re: Re:

    So you agree that Intellectual Property laws need to define what is illegal more clearly?

     

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  11.  
    icon
    Mike Masnick (profile), Jun 11th, 2010 @ 9:45am

    Re: Trademarks

    Not so sure about the common sense here... what's the point of having a trademark if you can't regulate its usage?


    The point of trademark was never about giving full property rights to the holder. It's purpose is actually consumer protection: i.e., to make sure that if you buy a can of something called "Coca-Cola" it actually comes from Coca Cola.

    The idea is that its purpose is only to apply in situations where you might be confused.

    It has NEVER been about giving the holder full rights to control usage.

    Think fake rolex watches, fake iPods etc.


    Yes, in those cases the problem is potential of actual confusion. The point here is that there is no confusion. This is more akin to a situation where a company puts up a billboard in front of its competitor, or offers a coupon that says "thinking of buying coke? get a pepsi instead" -- which is perfectly legal.

    You can protect a trademark in the physical world, why not on the internet.


    Again, that protection is not absolute. This ruling is very much in line with offline trademark law.

     

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  12.  
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    Mike Masnick (profile), Jun 11th, 2010 @ 9:49am

    Re:

    the ruling is weak, mostly because it is entirely dependent on the material on the destination website not being confusing to the visitors

    You do realize that there have been tons of similar rulings around the globe, and none are considered "weak." The standard is never the destination site, but the ad. Not that you have ever bothered to take the time to understand anything we post about.

    Honestly, for years we've been suggesting you do some research before making yourself look like a fool. Your failure to do so says quite a lot.

    it creates a standard that cannot easily be applied by companies like google, you would likely err on the side of caution and say "might be confused by someone" and remove the ads at the request of the copyright holder

    Yikes. After all this time, you still don't seem to notice the difference between copyright and trademark law.

    This is trademark, not copyright. The standard does not apply to Google. This is not an issue between Google and companies, but between the companies themselves. Google has no responsibility here, as courts have shown again and again and again, despite your wrong assertion. I mean, honestly, at this point, your arguing against a decade of caselaw, all of which has *explicitly* stated what you say above is false.

    its a poor judgement that muddies the waters more than clearing them up.

    Other than the fact that it's been in place in the US for nearly a decade and has become so clear that these kinds of lawsuits have mostly dried up, other than a few folks -- like yourself -- too clueless to check the case law. But those, like you, get dismissed quickly.

     

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  13.  
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    Technopolitical (profile), Jun 11th, 2010 @ 11:47am

    You do realize that there have been tons of similar rulings around the globe, and none are considered "weak.

    MIKE :"You do realize that there have been tons of similar rulings around the globe, and none are considered "weak."

    ---------

    ME : Balance that against all the instances "infringement ", settled out of court.. or just FLATT OUT stopped , by cease letters.

    Or just biz , being kept in line by the law in general.
    ------------------------

    Mike ,, your depth of perception , shows your geek culture: SHALLOW

    Philosophy and deep layer-ed thought-- goes right by you.
    --------------------
    What you see

    is not the world.
    -------------------
    " the more I learn the less I know" -- Budda & Rabbis , say that all the time.

     

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  14.  
    identicon
    Anonymous Coward, Jun 11th, 2010 @ 1:58pm

    Re: You do realize that there have been tons of similar rulings around the globe, and none are considered "weak.

    RAPE!!!

     

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  15.  
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    Technopolitical (profile), Jun 11th, 2010 @ 2:14pm

    Re: Re: You do realize that there have been tons of similar rulings around the globe, and none are considered "weak.

    What is the point of posting that.? Every time i post the two days.!?! At least i know I get read here. (jerk)

     

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  16.  
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    Technopolitical (profile), Jun 11th, 2010 @ 2:17pm

    Re: Re: Trademarks/// The point of trademark was never about giving full property rights to the holder.

    MIKE :"The point of trademark was never about giving full property rights to the holder."

    ME : WRONG. Interview any member of SCOTUS.

     

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  17.  
    icon
    Mike Masnick (profile), Jun 11th, 2010 @ 2:37pm

    Re: Re: Re: Trademarks/// The point of trademark was never about giving full property rights to the holder.

    MIKE :"The point of trademark was never about giving full property rights to the holder."

    ME : WRONG. Interview any member of SCOTUS.


    TP, multiple people have pointed out to you that you seem to be wrong on nearly everything you post. On this one, you aren't just wrong, but are displaying near willful ignorance of the Supreme Court's holdings on trademark law.

    http://www.wmitchell.edu/lawreview/Volume30/Issue5/4Welkowitz.pdf

    "Beginning with Wal-Mart, the Court increasingly has viewed trademark law through the lens of unfair competition, rather than intellectual property. In Wal-Mart, the fear of unwarranted monopolization of product designs was evident in the Court's discussion of the need for a clear rule to discourage lawsuits that would hinder competition.162 The TrafFix statements about functionality reinforce the viewpoint of unfair competition versus intellectual property.163 The observation in Moseley that trademark
    dilution protection benefits trademark owners, not consumers, follows the same path. Finally, Dastar's specific juxtaposition of trademark on the one hand and intellectual property rights (i.e., copyright and patent) on the other, together with its reiteration of the TrafFix caution about overprotecting trademarks, solidifies the theme. As a result, whether certain uses of trademark law will be permitted seems to turn on whether there is some pro-consumer, or at least pro-competitive (or anti-unfair competition) aspect to the particular trademark principle in question. In other words, the Court tests trademark not with an eye toward protecting trademark owners for their own sake, but protecting consumers and the competitive economy from harm."

    Let's see if TP can admit he's wrong. Or if he just calls this discussion of *actual* Supreme Court case law "pirate logic."

     

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  18.  
    icon
    Mike Masnick (profile), Jun 11th, 2010 @ 2:42pm

    Re: "Always nice to see common sense prevail in court. "

    Seems more like the Canadian Law has a "bug" hole that needs a patch download.


    This same rule has been applied in US and European courts. Are they all "bugged"? I get the feeling you don't even understand the issue at play.

    Question, TP: do you think it's illegal or unfair for a car company to buy an ad in a newspaper next to the classified listings for car dealers?

     

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  19.  
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    TtfnJohn (profile), Jun 11th, 2010 @ 5:41pm

    Re: "Always nice to see common sense prevail in court. "

    "Seems more like the Canadian Law has a "bug" hole that needs a patch download."

    In what respect, exactly, does Canadian trademark law, need a "patch download" and just where, exactly, is the patch required.

    Even more to the point, where the hell is the piracy here?

    The case is a real one, if you bothered to look it up.

    For the information of the terminally ignorant and happy to stay that way, the private company sometimes calling itself VCC has been around for a coon's age or three as has the public institution known as Vancouver Community College and have advertised next to each other forever (in commercial terms).

     

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  20.  
    identicon
    Anonymous Coward, Jun 12th, 2010 @ 10:24am

    poppycock. If someone used the word apple there would be hell to pay.

     

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  21.  
    icon
    Technopolitical (profile), Jun 12th, 2010 @ 7:40pm

    Re: Re: Re: Re: Trademarks/// The point of trademark was never about giving full property rights to the holder.

    I said interview a MEMBER OF SCOTUS.

    the writer is not on SCOTUS.

    Get a member of SCOTUS to tell me DIRECTLY I am wrong and then we will see.

    truly Pirate-pretzel logic, here Mike.

    Copyright is in the Constitution to stay. There is no serious movement AT ALL to remove it.

     

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  22.  
    icon
    Technopolitical (profile), Jun 12th, 2010 @ 8:00pm

    Question, TP: do you think it's illegal or unfair for a car company to buy an ad in a newspaper next to the classified listings for car dealers?

    "Question, TP: do you think it's illegal or unfair for a car company to buy an ad in a newspaper next to the classified listings for car dealers?."

    Ask a lawyer who deals with it, MM.
    Ask a sitting judge , also. Get back to me.

    I follow the lead of my teachers, mentors , spiritual masters.

    I do not invent to arguments , i post here.

    They are strait out of any Political theory class and/or textbook

    But, on your question-- which is irrelevant to copy law ---- my educated guess it is the newspaper's call, and the law is neutral on the point.

    But I may be wrong , as I am only answering of the top of my head w/o research. If you have any sources on a good discourse on the topic , i will gladly read it carefully. Then ask some law professors and/or sitting judges, that I know personally, and get back to you.

    I do not own a newspaper , so , if the law is neutral , i would not know , how i would view it ethically, without dealing daily with the issue.

    But I fail to see what you question has to do with my right to control my Art. A right you deny exists. That is where you are wrong. and it is the root & core of or "debate".

    You never answers , mt springsteen vs Gohn McCain question.

    Do you mike , think Bruce had the , "legal" ? , "moral" , and/ or "natural" RIGHT to tell McCain NOT to use his songs and music?

    That fact is McCain stopped using "the Boss's " song. He did not deny Bruce's right to control his ART. Do you Mike ?

    Interview Bruce , too if you can .

    I bet he would love to talk about it with you.

    That is what we are "debating". Not newspaer ads

     

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  23.  
    icon
    Technopolitical (profile), Jun 12th, 2010 @ 8:04pm

    You never answers , mt springsteen vs Gohn McCain question.

    You never answered , My "Springsteen vs John McCain" question.

    corrected.

    I got distracted by life stuff. and hit submit too soon.

     

    reply to this | link to this | view in thread ]

  24.  
    icon
    Technopolitical (profile), Jun 12th, 2010 @ 9:50pm

    TP, multiple people have pointed out to you that you seem to be wrong on nearly everything you post.

    "TP, multiple people have pointed out to you that you seem to be wrong on nearly everything you post."

    None of these "multiple people" have copyright law degrees, nor are members of congress, or sit on SCOTUS.

    Those are the only opinions that matter to my points.

    And the only people who can say I am wrong.

    I "seem to be wrong on nearly everything " I post, only to people who simply have no solid academic background , in law, philosophy of law , nor political thought history.

    Those topics was a large part of my academic discipline and professional activist career .

    Some high school kid on meth, does not ever dent my arguments, on serious points of law, morals & philosophy , taught in any law school.
    ------------------------------------------------------
    ( Either way , my favorite movie is 12 Angry Men. And Henry Fonda my favorite actor, for esp this film. Very big influence, not just on me ,, but very many people. It gives us strength against the Pirate Logic people of the world. All here should watch the film , if you can get a legal copy.)
    http://en.wikipedia.org/wiki/12_Angry_Men_%281957_film%29#Critical_responses
    All my points posted here have been academically tested , and well graded with "A"s.

    Leave law to lawyers , judges and SCOTUS.

    Techdirt is just mental masturbation on the topic.


    All our words here has no real world impact.*

    The Constitution will not be changed to gut it of Copyright.

    Political Reality.
    --------------------------------
    * if it get even one person to stop their illegal downloads, because they see the sound moral and logical reasoning of my posts, then that is good. It I get 100 better still,, and so forth.

    I am not holding my breadth.
    -------------------------------------------

     

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  25.  
    icon
    Technopolitical (profile), Jun 12th, 2010 @ 9:53pm

    Human rights, Sociology - Henry Fonda - "12 angry men"

    Human rights, Sociology - Henry Fonda - "12 angry men"
    51:27 - 3 years ago
    Free University in Internet. Over 300 political, social, cultural & scientific Clips under “ kam200 ” . Anthropology, Archaeology, Astrophysics, Atheism, Biology, Cosmology, Democracy, Feminism, Freedom, Genetics, Geology, History, Human, rights, Palaeontology, Philosophy, Politics, Religion, Science, Sociology, Zoology, And many more …

    http://video.google.com/videoplay?docid=-8879792408487708107#

     

    reply to this | link to this | view in thread ]

  26.  
    icon
    Technopolitical (profile), Jun 13th, 2010 @ 2:57am

    Re: Re: Re: Re: Trademarks/// The point of trademark was never about giving full property rights to the holder.

    http://www.economist.com/debate/days/view/312/CommentKey:289870

    Two professors debate copyright laws and the future. However neither supports abolishing it. ( I guess they could not find a sane person in academics who believes that )
    Great read here ,, at a primer publication.

    Please, any and everyone , READ it , before commenting,
    will say you time.

    Core quote from the debate moderator:

    "As our debaters quickly acknowledged, and many of the comments from the floor confirmed, the matter is not quite so stark in practice: one can admit that existing copyright laws are terribly flawed yet conclude they do not "do more harm than good," as the debate's motion demands. "
    --------------------------
    from the same page :

    Featured User's Comment

    Dear Sir,

    Unfortunately 'hope for the future' and many other people confuse patent law with copyright law.

    Also unfortunately, and ironically, both have failed to keep up with progress. Probably the single most important influence on copyright law, is the INTERNET.

    Copyright law, and therefore copyright owners, MUST adapt to this fast changing 'world' society.

    We are no longer restricted by geographical boundaries.

    The only copyright laws that will work, are those that ALL jurisdictions are prepared to respect.

    >>>Remember, the moral reason for Copyright law is to provide some method of intellectual protection (and therefore opportunity for financial reward), to the creators of material, eg. novels, poems, music etc. but the implementation of the law has many other business implications which seem to have become more rewarding for groups other than the original creators and that is contrary to the original intention.

     

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  27.  
    icon
    Technopolitical (profile), Jun 13th, 2010 @ 3:11am

    That fact is McCain stopped using "the Boss's " song. He did not deny Bruce's right to control his ART. Do you Mike ?

    That fact is THAT : McCain stopped using "the Boss's " song.

    He did not deny Bruce's right to control his ART.

    CORE POINT OF OUR DEBATE :

    Do you accept Bruce Springsteen's right to control his music , in this real work actual instance ----Mike ?.

    Answer Y or N first -- And then please do explain why clearly. Please also site major philosophers and specific quotes from SCOTUS decisions -- by members of SCOTUS ( living or dead.) to support your answers.

    [Pretend it is a final test , on copyright law , in any college level pol-sci class, and that you must pass this requisite course to graduate the college -- as i will be grading it as such. :)]

    No answer-- means you fail.

     

    reply to this | link to this | view in thread ]

  28.  
    icon
    Technopolitical (profile), Jun 13th, 2010 @ 3:24am

    In what respect, exactly, does Canadian trademark law, need a "patch download" and just where, exactly, is the patch required.

    ME: Judges are bound by law. Even if they disagree with the law.

    In the U.S. is is not uncommon for SCOTUS to uphold a slightly "flawed" law, and to also "recommend" that Congress should re-write the flawed part the law to better fit constitutional intent .

    IF SCOTUS overturns the law, it can ONLY be because it is wholly ( or mostly ) unconstitutional.

    --------------------

    Good read on this point :
    THE
    GEORGE WASHINGTON
    LAW REVIEW
    "Severability as Judicial Lawmaking"
    By David H. Gans
    http://groups.law.gwu.edu/LR/Pages/Article.aspx?ArticleID=194

     

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  29.  
    icon
    Technopolitical (profile), Jun 13th, 2010 @ 3:27am

    Re: poppycock. If someone used the word "apple" there would be hell to pay.

    and rightly so :)
    -----------------------------------
    Apple Corps v Apple Computer

    http://en.wikipedia.org/wiki/Apple_Corps_v_Apple_Computer

     

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  30.  
    icon
    Technopolitical (profile), Jun 13th, 2010 @ 7:23am

    Re: Question, TP: do you think it's illegal or unfair for a car company to buy an ad in a newspaper next to the classified listings for car dealers?

    But, on your question-- which is irrelevant to copy law ---- my educated guess it is the newspaper's call, and the ++AMERICAN Constitution & law is neutral on the point++.

    clearer

     

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  31.  
    icon
    Technopolitical (profile), Jun 13th, 2010 @ 1:46pm

    Re: Re: Re: Re: Re: Trademarks/// The point of trademark was never about giving full property rights to the holder.

    http://www.economist.com/debate/days/view/312/CommentKey:289870

    ">>>Remember, the moral reason for Copyright law is to provide some method of intellectual protection (and therefore opportunity for financial reward), to the creators of material, eg. novels, poems, music etc. but the implementation of the law has many other business implications which seem to have become more rewarding for groups other than the original creators and that is contrary to the original intention."

    http://www.economist.com/debate/days/view/312/CommentKey:289870

    ---

    Not me . i just like the words.

    -------------------------------

    What DO YOU THINK MIKE ? be clear, and cite sources, please.

    It's your job, anyway,

     

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  32.  
    identicon
    John, Jan 12th, 2011 @ 7:50am

    And yes, lcc, this is an important thing to note. Laws need to be a solid set of rules. Laws that run on "gut feelings" are prone to the political and capricious nature of judges. Dating webSite Reviews

     

    reply to this | link to this | view in thread ]


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