Act No. 255 / 2004 Coll.
Act amending Act No. 191 / 1999 Coll., on measures concerning the import, export and re-export of goods infringing certain intellectual property rights and amending certain other laws, as amended
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30.04.2004
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255
THE LAW
of 13 April 2004
amending Act No 191 / 1999 Coll., on measures relating to the import, export and re-export of goods infringing certain intellectual property rights and amending certain other laws, as amended
Parliament has decided on this law of the Czech Republic:
Act No. 191 / 1999 Coll., on measures concerning the import, export and re-export of goods infringing certain intellectual property rights and amending certain other laws, as amended by Act No. 121 / 2000 Coll. and Act No. 260 / 2002 Coll., is amended as follows:
1. The heading of Part One shall read "INTRODUCTORY PROVISIONS '.
2. The title shall be deleted.
3. Paragraph 1, including footnote 1, reads:
(1) This law lays down the conditions under which intervention by the customs office against persons who own, hold, store or sell goods whose intellectual property rights have been infringed in the customs territory of the European Communities (hereinafter referred to as "the Community") in accordance with the immediately binding Community legislation (1).
(2) That law also lays down the conditions under which the customs office is entitled
(a) to ensure that goods which he has reasonable grounds for suspecting that their manufacture or treatment has infringed intellectual property rights;
(b) ensure the destruction of the goods;
(c) exclude goods from trading and other treatment of goods which have been recognised by the court as having been produced or processed in breach of intellectual property rights; or
(d) to discuss offences and administrative offences in breach of this law.
1) Council Regulation (EC) No 3295 / 94 of 22 December 1994 laying down measures to prohibit the release for free circulation, export, re-export or for a suspensive procedure, published in the Official Journal of the EC L 341 of 30.12.1994, p. 8 - 13, as amended by Council Regulation (EC) No 241 / 1999, published in the Official Journal of the EC L 027, 2.2.1999, p. 1. Council Regulation (EC) No 1383 / 2003 of 22 July 2003 concerning customs intervention against goods suspected of infringing certain intellectual property rights and measures to be taken against goods which have proven to have infringed such rights, published in the Official Journal of the EC L 196, p. 7 - 14. ';
4.
Definition of terms
For the purposes of this Act:
(a) the intervention of the customs office by an act carried out by the customs office under this law;
(b) the humanitarian purposes of the activity carried out in order to ensure the essential needs of the population in a difficult life situation or to be affected by an emergency in which the use of exceptional material resources is justified. ";
5. Article 3 shall be deleted;
6. the words "TITLE II" shall be replaced by the words "PART TWO";
7. The heading of Part Two reads: "APPLICATION FOR CUSTOMS SUPPORT '.
8. Paragraph 4, including the title and footnotes No 2) to 6) reads as follows:
Application for intervention by the customs office and reimbursement of costs
(1) The right-holder (2) applies for intervention by the customs office ("the application") To the Hradec Králové Customs Directorate ("the Customs Directorate '), which decides to approve or reject the application. The Customs Directorate shall immediately inform the competent customs office to carry out the intervention when the application is approved and shall forward this decision, as well as the decision to which it rejects the application, to the right-holder.
(2) Application shall be made on the prescribed form.3)
(3) In the event that the proceedings initiated pursuant to Paragraph 11 are suspended because of the conduct or omission by the right-holder, or where the goods in question are subsequently verified as not being manufactured or processed, or where the right-holder uses the information referred to in Article 11 (1) for purposes other than the application of the Civil Code or for the application of Article 14 (1), the right-holder shall assume liability towards persons involved in the procedure (4) and shall pay all costs associated with the maintenance of the goods under customs supervision. Where it has been established, in accordance with the first sentence, that the goods in question are goods the manufacture or treatment of which has infringed intellectual property rights, those costs shall be paid on importation of the importer, on export or re-export of the exporter, in other cases the owner or holder of the goods. The Customs Directorate shall send the right-holder in writing, or, if the right-holder so requests, an electronic communication signed under a special law, 5) (hereinafter referred to as "electronically '), indicating the amount which he is obliged to pay on the basis of a declaration (6) made in writing or electronically, indicating the account number to which the amount is to be paid.
2) Article 2 (2) of Council Regulation (EC) No 1383 / 2003.
3) Article 5 (5) of Council Regulation (EC) No 1383 / 2003.
4) Article 6 (1) of Council Regulation (EC) No 1383 / 2003.
5) Act No. 227 / 2000 Coll., on electronic signature and amending certain other laws (Act on electronic signature), as amended.
(6) Article 6 of Council Regulation (EC) No 1383 / 2003. "
9. Sections 5 to 8 are deleted, including the headings.
10. 'TITLE III' shall be replaced by 'PART THREE';
11. The heading of Part Three shall read: "DETERMINATION OF GOODS WHICH HAVE BEEN INFRINGED BY THE PRODUCT OR BY THE ADJUSTMENT WAS INFRINGED BY THE RIGHTS TO THE INDUSTRY IN IMPLEMENTATION OF THE CUSTOMS SUPPORT."
12. in Paragraph 9 (1), including footnotes 7 and 8, the following shall be added:
"(1) The customs office which has secured the goods in the course of carrying out customs supervision (7) at the time when the application has not yet been lodged shall immediately inform the proprietor of the right, if known, in writing or electronically, of the fact found to be a breach of his right in order to submit an application pursuant to Article 4, and of the details of the actual or anticipated quantity of the goods and their nature. It shall likewise proceed when the goods are presented to the customs office by another authority under a special legislation. 8)
7) Point 13 of Article 4 of Council Regulation (EEC) No 2913 / 92 of 12 October 1992 establishing the Community Customs Code, as amended.
8) For example Article 23 (8) of Act No. 634 / 1992 Coll., on Consumer Protection, as amended. '
13. in Paragraph 9, paragraph 2 is deleted;
Paragraphs 3 to 7 shall be renumbered paragraphs 2 to 6.
14. in Paragraph 9 (2), the word "paragraphs" shall be replaced by "paragraphs," the words "and" 2 "shall be replaced by the words" to the person for whom it was established, "and the words" 15 days "shall be replaced by the words" referred to in the decision for which it was secured, "
15. in Article 9 (3), the first sentence is deleted;
16. in Article 9 (3), the words "goods which can be secured" shall be replaced by the words "goods secured," the words "which have been secured by decision" shall be inserted after the words "keep the person" and the following sentence shall be added at the end of the paragraph: "The acts which infringed this prohibition shall be void."
17. in the third and fourth sentences of Paragraph 9 (4): "The issue or withdrawal of the goods shall be subject to an official record signed by two customs officers and by the person who issued the goods and, where appropriate, to the removal of the goods, indicating the quantity and description of the goods. The customs office shall forward the duplicate of the official record to the person who issued the goods and, where appropriate, to the person who has been removed. ';
18. in Paragraph 9 (5):
"(5) If it is not possible for the goods secured to impose a forfeiture penalty or safeguard measure by preventing or deciding to destroy the goods in accordance with Paragraph 14, they shall be returned to the person who has been secured. Where another person exercises the right to such secured goods and the customs office has doubts as to whether that person or person who has secured the goods is the owner of the goods, it shall propose that those persons apply their claim to the court within the time limit provided for them. ';
19. in Paragraph 9, paragraph 6 is deleted;
20. Article 10 shall be deleted;
21. 'TITLE IV' shall be replaced by 'PART FOUR';
22. The heading of Part Four reads: "CONDITIONS FOR THE CUSTOMS AUTHORITY '.
23. Paragraph 11, including footnotes 9) to 11) reads as follows:
(1) The customs office to which the decision to approve the application has been served by the customs office of departure and which has secured the goods shall, upon request, send the holder of the right in writing or electronically a communication containing, where appropriate, the name, surname and address of the place of permanent residence or the name or business name of the consignee and of the registered office, the name and address of the natural person involved and the address of the place of permanent residence, the declarant, the owner or the holder of the goods, and, if known, the name, surname and address of the place of residence or the company and the registered office of the consignee and consignor, as well as details of the origin and the place of dispatch of the goods whose manufacture or processing has been infringed intellectual property in order for the protection of his right. 9)
(2) The customs office may transmit or transmit the samples taken to the owner of the right to his express request only for the purpose of analysing and facilitating further proceedings. 10)
(3) The right-holder must immediately inform the customs office, in writing or electronically, that a procedure has been initiated to determine whether goods the manufacture or modification of which has infringed intellectual property rights. 11)
9) Articles 9 (3), 10, 11 and 13 (1) of Council Regulation (EC) No 1383 / 2003.
10) Article 9 (3), second subparagraph, of Council Regulation (EC) No 1383 / 2003.
11) Article 10, second paragraph, of Council Regulation (EC) No 1383 / 2003. '
24. Article 12 shall be deleted;
25. Paragraph 13, including footnotes 12) to 15) reads as follows:
(1) Where secured goods are to be stored until they are placed under the proposed customs procedure, 12) the conditions for temporary storage of the goods shall apply mutatis mutandis. 13)
(2) Where a security is to be lodged, 14) the security may be lodged in cash on behalf of the customs office or replaced by a bank guarantee. 15) Submission of a check guaranteed by the bank shall be deemed to consist of cash on behalf of the customs office.
12) Articles 14 (1) and 15 of Council Regulation (EC) No 1383 / 2003.
13) Articles 50 to 53 of Council Regulation (EEC) No 2913 / 92.
14) Article 14 (2) of Council Regulation (EC) No 1383 / 2003.
15) § 313 to 322 of the Commercial Code. '.
Article 26 (14), including the title and footnotes No 16) to (28), reads:
Treatment of goods the manufacture or modification of which has infringed intellectual property rights
(1) Where goods whose manufacture or treatment has infringed the rights of the owner of the intellectual property have been secured, the customs office shall decide, at his request, to destroy the goods and ensure destruction under the supervision of three customs officers. An official record shall be drawn up of the destruction, signed by all three customs officers, including the quantity and description of the goods, without any further need to verify whether the intellectual property right has been infringed, 16), provided that:
(a) the holder of the right shall inform the customs office, in writing or electronically, within 10 working days or three working days, if the perishable goods are concerned, of the fact that the goods are being manufactured or processed in breach of his intellectual property right and shall transmit to the customs office the agreement of the declarant, 17) the owner or holder of the goods made in writing or electronically with the destruction of the goods; with the agreement of the customs office, the declarant, owner or holder of the goods may transmit this information in writing or electronically directly to the customs office. Where the declarant, the owner or the holder of the goods does not object to destruction within the prescribed period, such approval shall be deemed to have been accepted. Where circumstances so require, that period may be extended by a further 10 working days,
(b) before destruction, samples shall be taken which are kept by the customs office in such a way that they can serve as evidence admissible in any judicial proceedings; and
(c) destruction shall be carried out at the expense and responsibility of the declarant, owner or holder of the goods.
(2) Where the Court of First Instance decides that the goods in question are goods the manufacture or treatment of which has infringed intellectual property rights, 18) or are goods the manufacture or modification of which has infringed intellectual property rights and which have been left to the benefit of the State, and the declarant, owner or holder has not himself destroyed them, 19), and if no decision has been taken to forfeit or prevent such goods, the customs office will ensure that the goods are destroyed at the expense of the declarant, owner or holder of the goods. Where the customs office is not aware of the owner or holder of the goods whose manufacture or modification has been infringed by intellectual property rights, or where it is not established, the customs office shall ensure that they are destroyed at the expense of the holder of the right.
(3) If the court decides, in a final decision, that before further treatment of forgeries 20) it is sufficient to remove the marks, 21) the customs office will ensure that they are removed and destroyed at the expense of the declarant, owner or holder of the goods. The customs office shall ensure that trade marks are removed under the conditions referred to in paragraph 4 (a) and destroyed in accordance with paragraph 4 (c) if forfeited or prevented.
(4) The customs office shall provide for the costs of the perpetrator of the offence or administrative offence:
(a) with the consent of the proprietor of the right made in writing or electronically, the removal of marks from forfeited or seized counterfeits, as decided by the court, in such a way that they can be disposed of in a manner other than by sale;
(b) with the consent of the proprietor of the right in writing or by electronic means (5), to make adjustments to forfeited or seized counterfeits, provided that this does not change the nature of the goods in such a way that they can be handled in a manner other than their sale; or
(c) the destruction of goods which have been forfeited or seized, the manufacture or treatment of which has infringed intellectual property rights, trade marks removed under (a), waste and residues resulting from other adjustments under (b).
(5) Where there is no known person who has infringed the law in any of the ways set out in paragraphs 15 and 23, or has failed to comply with it, the customs office shall ensure the destruction of goods the manufacture or modification of which has infringed intellectual property rights and for whom the offence or administrative offence has been ruled out at the expense of the right-holder.
(6) The Customs Directorate shall decide, according to the details of the customs office, on the basis of a final decision to forfeit or prevent counterfeiting and provided that the holder of the right has given his consent to the use of the counterfeits modified in accordance with paragraph 4 for humanitarian purposes in writing or electronically, which are legally forfeited or seized, and which, under the conditions laid down by this Law and the special provisions, may be transferred free of charge to the recipient organisation referred to in paragraph 7. For humanitarian purposes, counterfeit goods which are clearly disabled cannot be transferred free of charge. Counterfeits shall be transferred free of charge according to the purpose and use or urgency of the needs, taking into account the order of the requests received.
(7) The receiving organisations may:
(a) the organisational components and contribution organisations of the State or local authorities established for the purpose of providing social care or in the field of health or education, 23); or
(b) other legal persons, 24) if they fulfil the following conditions:
1. have not been set up for business purposes;
2. their activity shall only be carried out in the areas referred to in point (a);
3. provide humanitarian aid for at least 2 years; and
4. Confirm by the competent authority not earlier than 3 months that they do not have arrears on taxes, outstanding arrears on social security contributions and contributions to national employment policy, including periodic penalty payments, due arrears on public health insurance premiums, including periodic penalty payments. 25) For the purposes of this Act, due arrears on social security contributions and contributions to national employment policy shall also mean outstanding premiums, including periodic penalty payments, for which reimbursement has been granted under the special legislature26) its repayment in instalments.
(8) The receiving organisation shall:
(a) take measures to prevent the diversion and re-entry into trade of counterfeits;
(b) ensure, under the conditions laid down by the Customs Directorate and at its expense, the removal of the trade marks referred to in paragraph 4 (a) or the execution of other adjustments in the manner referred to in paragraph 4 (b) and the destruction of the trade marks, waste and residues removed after those adaptations referred to in paragraph 4 (c);
(c) ensure that all modified counterfeits are marked "humanities" in such a way that the inscription is not directly visible and thus the dignity of the persons who use them is not reduced;
(d) to register and keep records of the receipt of counterfeits and the manner in which they have been handled for 3 years from the time of the free transfer; This shall be without prejudice to the provisions of specific legislation governing the registration and archiving of the documents provided for. 27)
(9) On the free transfer of counterfeits for humanitarian purposes, the Directorate-General for Customs and the Receiving Organisations referred to in paragraph 7 shall conclude a written contract, which, in addition to the usual essential requirements, shall always contain the type and quantity of counterfeits transferred free of charge, the conditions of the Customs Directorate referred to in paragraph 8 (b) and the provisions on the contractual fine (28) in the event of a breach of the obligation to transfer counterfeits free of charge solely for humanitarian purposes and the specific purpose for which the accepting organisation shall apply the counterfeit.
(10) The customs office shall be entitled to check with the receiving organisation the fulfilment of the obligations to which the receiving organisation has contracted. The Customs Directorate shall inform the outcome of the inspection.
16) Article 11 of Council Regulation (EC) No 1383 / 2003.
17) Article 4 (18) of Council Regulation (EEC) No 2913 / 92, as amended.
18) Article 17 of Council Regulation (EC) No 1383 / 2003.
19) Article 182 of Council Regulation (EEC) No 2913 / 92.
20) Article 2 (1) of Council Regulation (EC) No 1383 / 2003.
21) Article 17 of Council Regulation (EC) No 1383 / 2003.
22) Act No. 219 / 2000 Coll., on the property of the Czech Republic and its appearance in legal relations, as amended.
23) For example, Act No. 114 / 1988 Coll., on the competence of the institutions of the Czech Republic in social security, as amended, Act No. 109 / 2002 Coll., on the performance of constitutional education or protective education in educational establishments and on preventive educational care in educational establishments and on the amendment of other laws, Act No. 170 / 2002 Coll., on war veterans.
24) For example, Act No. 248 / 1995 Coll., on Public Beneficial Societies and on the amendment and addition of certain laws, as amended, Act No. 227 / 1997 Coll., on Foundations and Foundation Funds and on the amendment and addition of certain related laws (Act on Foundations and Foundations), as amended, Act No. 83 / 1990 Coll., on the Association of Citizens, as amended, Act No. 3 / 2002 Coll., on the Freedom of Religious Religion and Religious Societies and on the Amendment to Certain Acts on Churches and Religious Societies, Act No. 4 / 2003 Coll., Act No. 325 / 1999 Coll.
25) Act No. 337 / 1992 Coll., on the Administration of Taxes and Fees, as amended. Act No. 589 / 1992 Coll., on Social Security and Contribution to State Employment Policy, as amended. Act No. 48 / 1997 Coll., on Public Health Insurance, as amended. Act No. 592 / 1992 Coll., on Insurance for General Health Insurance, as amended.
26) § 20a of Act No. 589 / 1992 Coll., as amended.
27) For example, Act No. 563 / 1991 Coll., on Accounting, as amended, Act No. 337 / 1992 Coll., as amended.
28) Sections 544 and 545 of the Civil Code. '
27. the following Section 14a is inserted after Section 14, including footnotes 29) to 31):
(1) The State is not liable for damage, 29) which arose
(a) the proprietor of the right by not revealing, by the customs office, goods the manufacture or treatment of which has infringed intellectual property rights or by the release of such goods, or by not taking measures to ensure it, 30) if the damage to which the State's liability is governed by a special law, 31)
(b) persons concerned by acts of intervention of the customs office where the inspection carried out by the customs office at the time of the customs procedure and before or after receipt of the application has resulted in loss or damage, unless there is damage caused by an unlawful decision or by an incorrect official procedure of the customs office.
(2) Civil liability of the right-holder is governed by the Civil Code.
29) Article 19 of Council Regulation (EC) No 1383 / 2003.
30) Article 19 of Council Regulation (EC) No 1383 / 2003.
31) Act No. 82 / 1998 Coll., on liability for damage caused in the exercise of public authority by decision or by incorrect official procedure and amending Act No. 358 / 1992 Coll., on notaries and their activities (notarial order), as amended. '
28. 'TITLE V' shall be replaced by 'PART FIVE';
29. The words "TITLE I 'shall be inserted under the heading of Part Five, the title of which reads" TRANSFERS'.
30.
(1) A natural person commits an offence by:
(a) lodge a customs declaration for release for free circulation of goods the manufacture or treatment of which has been infringed by intellectual property rights (32) or the export procedure, 33)
(b) lodge an application for the release of goods whose manufacture or treatment has been infringed by intellectual property rights, re-export or request its placing in a free zone or free warehouse, 34)
(c) the release for free circulation, the export or re-export procedure or one of the suspensive arrangements, 36) or the placing in a free zone or free warehouse of goods whose manufacture or processing has been infringed;
(d) transports into the customs territory of the Community, owns, holds, stores or sells in the territory of the Czech Republic goods which have escaped customs supervision and whose manufacture or treatment has infringed intellectual property rights; or
(e) fail to comply with the conditions for the disposal of goods secured under this law.
(2) The following penalties may be imposed for an offence:
(a) fine,
(b) forfeiture of goods.
(3) The customs office in whose territory the offence has been detected shall be responsible for the infringement proceedings at first instance.
32) Articles 79 to 83 of Council Regulation (EEC) No 2913 / 92.
33) Articles 161 and 162 of Council Regulation (EEC) No 2913 / 92.
34) Articles 166 to 182 of Council Regulation (EEC) No 2913 / 92.
35) Article 182 (1), first indent, of Council Regulation (EEC) No 2913 / 92.
36) Article 84 (1) (a) of Council Regulation (EEC) No 2913 / 92. '
31. In Part Four, the title of the first part, including the title above Paragraph 16, is deleted.
32.
Transfers
(1) A fine of up to 100 000 CZK may be imposed for an offence pursuant to § 15 (1) (a) and (b). A fine of up to CZK 1 000 000 may be imposed for an infringement pursuant to § 15 (1) (e).
(2) A fine may be imposed for an offence pursuant to § 15 (1) (c) and (d)
(a) up to 1 000 000 CZK,
(b) up to 5 000 000 CZK, if the perpetrator has violated his obligations to a greater extent,
(c) up to 20 000 000 CZK, if the perpetrator has violated his obligations to a significant extent.
(3) The infringement is to a greater extent if the customs value of goods whose manufacture or treatment has infringed intellectual property rights exceeds CZK 1 000 000, and if the goods are exported or re-exported, if the statistical value of goods applied under the special legislation37) exceeds CZK 1 000 000. Infringement of obligations to a significant extent is the case where the customs value of goods whose manufacture or treatment has infringed intellectual property rights exceeds CZK 5 000 000, and the goods are exported or re-exported if the statistical value applied under the special legislation37) exceeds CZK 5 000 000.
(4) The penalty for the offence referred to in Article 15 (1) may be imposed within one year of the date on which the customs office responsible for the infringement became aware of the infringement, but no later than six years after the infringement or failure to comply with the obligation.
(5) Penalties for forfeiture of goods may be imposed either separately or together with penalties.
37) Points 16 to 21 of Part I of the Annex to Decree No. 200 / 2004 Coll., on statistics on exported and imported goods and on how to communicate trade data between the Czech Republic and the other Member States of the European Communities. "
33. Sections 17 and 18 are deleted.
34. In Paragraph 19 (2), the word "cannot 'is replaced by the word" may' and the words "if it is' are replaced by" even if it is'.
35. in Paragraph 19, paragraph 3 is deleted;
Paragraph 4 shall become paragraph 3.
36. In Article 19 (3), the words "can be saved 'are replaced by the words" stored' and the words "Article 17 'are replaced by the words" Article 16 (4)'.
37. in Paragraph 20 (1), the last word 'or' shall be deleted at the end of point (b) and point (c) shall be deleted at the same time.
38. In Paragraph 20, the following paragraph 2 is inserted after paragraph 1:
"(2) The customs office shall decide that the goods are taken up unless the person who has infringed the law is known in any of the ways set out in Paragraph 15 (1). '
Paragraph 2 shall become paragraph 3.
(39) Sections 21 and 22, including footnote 24, are deleted.
40. The current "Part 2" shall be referred to as "TITLE II."
41. Paragraph 23, including the title, reads:
Administrative offences
(1) A legal person and a natural person who is an entrepreneur commit an administrative offence in their business by:
(a) lodge a customs declaration for the release into the free circulation or export procedure of goods whose intellectual property rights have been infringed by manufacture or treatment;
(b) lodge an application for the release of goods whose manufacture or treatment has been infringed by intellectual property rights, re-export or request its placing in a free zone or free warehouse;
(c) the release for free circulation, the export or re-export procedure or one of the suspensive arrangements, or the placing in a free zone or free warehouse of goods whose manufacture or processing has been infringed by the customs legislation;
(d) transports into the customs territory of the Community, owns, holds, stores or sells in the territory of the Czech Republic goods which have escaped customs supervision and whose manufacture or treatment has infringed intellectual property rights; or
(e) failure to comply with the conditions for the disposal of goods secured under this Act or to comply with the conditions for the disposal of goods transferred free of charge for humanitarian purposes.
(2) The following penalties may be imposed for an administrative offence:
(a) fine,
(b) forfeiture of goods.
(3) The customs office in whose territory the administrative offence has been detected is competent at first instance for administrative proceedings. "
42. The heading of Section 24 is deleted.
43. In Article 24 (1), the words "pursuant to Article 23 (1) (a) and (b)" and the words "the following penalties:" shall be replaced by "a fine of up to CZK 100 000."; after the first sentence, the sentence "After the administrative offence referred to in Article 23 (1) (e), a fine of up to CZK 1 000 000 may be imposed."
44. in Article 24 (1), points (a) and (b) are deleted;
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Regulation Information
| Citation | Act No. 255 / 2004 Coll., amending Act No. 191 / 1999 Coll., on measures concerning the import, export and re-export of goods infringing certain intellectual property rights and amending certain other laws, as amended |
|---|---|
| Regulation Type | Law |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 30.04.2004 |
|---|---|
| Effective from | 01.05.2004 |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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