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For those of you who play guitar, you have probably played a stratocaster at one point or another. Or maybe you haven't. The "stratocaster" shape (also called the S-body) is one of the most copied and cloned electric guitar designs in history. Back in 2009, Fender tried to trademark the body shape in the United states and failed. However, Fender recently went back on the offensive and filed a new suit in a German court.
The defendant did not show up, and it appears that Fender has won the German equivalent of a summary judgement.
Why is this in the culture war, you ask? Mostly because it represents another crack in the monolithic corporate-mass media culture that defined the United states from circa 1950 to 2010.
Leo Fender launched the Fender Electric Instrument Company in 1946, and created several iconic stringed instrument designs between 1950 and 1954, including the Telecaster guitar, Precision Bass, and Stratocaster guitar. The Stratocaster, in particular, set the musical world on fire due to its heavily contoured body, flexible pickup arrangement, and and tremolo bridge. Guitarists like Dick Dale, Jimi Hendrix, Eddie Van Halen, and Stevie Ray Vaughan took the instrument and created brand new, incredibly popular styles of music.
Things were going great for the strat, but the Fender Electric Instrument company wasn't having the best time. Leo Fender sold his interest in the company to the Columbia Records Distribution Corporation or CBS. Musicians derided instruments produced under the new ownership, and "pre-CBS" instruments developed a mystique that made them highly coveted prizes.
Eventually, CBS decided to unload the Fender brand, and a car dealership-turned private equity company called Servco Pacific Capital picked it up. This launched ushered in a cambrian explosion of product lines meant to ruthlessly segment the market into every possible price point. Around this time, Fender started running into a real problem. It turned out that other people could also make guitars. Japanese companies started undercutting Fender with clones of their most popular products. Some companies would attempt to double down on quality, but not Fender. Instead, they bought out the biggest clone company and rebranded them as their own "Squier" product line, turned to aggressive IP protection (securing a trademark on their headstock design in 1991), and engaged in a public marketing blitz to make sure that the musical community understood value of a Real Fender™ over an inferior clone. This worked pretty well for a while, but eventually Fender started seeing real competition from above and below. While they could buy out low-end competitors, all it did was incentivize more clone builders to spring up in countries across the world with cheap labor. Indonesia, Korea, Sri Lanka, and China all started cranking out Fender clones at a fraction of the prices Fender was charging. At the same time, "boutique" builders like Suhr started nibbling away at the high end. Fender started losing its mystique. When a $300 guitar with a $50 setup could rival a pre-CBS guitar for ergonomics and tone, enthusiastic amateurs stopped dreaming about the day that they could get a Real Fender™. Instead of shelling out for a Real Fender™, serious musicians (and rich guys) would go straight for the boutique builds instead.
The end result is that the Fender brand is a shadow of what it used to be, largely propped up by a shrinking-but-affluent market, while their leadership is either unwilling or unable to branch out.
The Stratocaster suit, in particular, offends me in a way that's somewhat hard to articulate. If you've ever built a slab-bodied instrument before, you start to realize that there are only so many ways to accomplish the task. If you want an instrument that's comfortable to play while sitting, you need to cut a contour that matches the curve of a person's thigh. If you want to play high notes, you need to cut material out below the neck. You need a projection above the neck to attach the strap at the instrument's balance point, but you don't want to add too much weight, which results in a "horn". You need room for electronics, and you probably want a contour at the top for comfort while playing as well. In the end, there are only a handful of designs that can flow from those requirements. Unless you're a psychopath like Ned Steinberger, whatever you build is probably going to end up looking similar to a strat.
Fender isn't the only company out there suffering from a similar malady. In fact, it's almost identical to the trajectory of the Harley Davidson corporation. Both became aspirational, iconic symbols of Americana. Both started banking on tradition and mystique, while trying and failing to hold back the tide by buying out competition (see: Buell). Both they eventually ended up trapped by their own early success.
I've been thinking about this a lot lately, as I drive back and forth to band practice. I see far fewer motorcycles on the road than I did a decade ago. Musicians still exist, but the community of "instrument players" around me is going increasingly gray. Young people generally don't create music, or they stick to various flavors of electronica that they can produce on their own.
At the same time, the entire concept of "brand" has been eroding. In my youth, a brand generally traded on its reputation and relied on customer goodwill for its continued existence. Broadly speaking, 80s and 90s America trusted "brands". We hung out at the Dairy Queen. When somebody got a new guitar, we'd be excited to hear how that slick new Stratocaster sounded. A guy with a Harley was the coolest guy we knew. Craftsman tools were the last set you'd ever have to buy. Corporate consumer culture was mercantile, but at least it felt like you were getting something out of it.
In 2026, the American consumer/vendor relationship seems broken. Everything is owned by an increasingly small number of conglomerates who wear different skin suits to con suckers into buying from them, and not from those other guys, who are also them. It's starting to feel like a home-grown version of Chaebols, or Zaibatsu, and people are checking out.
This has has some real downstream effects. In a secular, essentially constructed nation like the US, the necessity of commerce and the prosperity that flows from it is one of the few universal experiences that citizens of this nation have. It feels like we're losing our lingua franca, however thin and materialistic it might be. At the same time, I can't tell what is cause and what is effect. Are the "lifestyle" companies all converging into a sleezy car dealer modality because it's efficient, or because Americans have stopped engaging with the idea of "lifestyle"? If it's the latter, is it because of a broader rejection of materialism, or because we're all fuckin' broke?
I don't think I have any answer to this, but if there's a moral to this story, maybe don't buy a Fender.
I have a half-baked theory on why brands fail like this. In theory, there's nothing wrong with a mass-market brand providing offerings for as much of the market as possible. I think the problem is that you have to commit to a certain minimum standard of quality for something you're willing to put your name on. For example, Specialized is one of the most respected bike brands in the US, and their line ranges from the Sirrus 1.0, a hybrid/commuter bike retailing at $699 to performance road bikes with carbon everything topping out at over $12,000. They are, along with Trek and Giant, one of the Big Three American bike companies, yet their actual market share is vanishingly small. Add up sales of the Big Three, plus close peers like Scott and Cannondale, plus boutique brands like Ibis, Pivot, and Revel, plus direct to consumer brands like Canyon and YT, plus imported brands, plus every other brand that I could possibly recommend that anyone buy, and it all totals up to about 30% of the total market. The remaining 70% are being sold at department stores like Wal-Mart and mass-market sporting goods stores like Dick's, and are being purchased by a non-discriminating public who doesn't want a lecture from a bike snob about why they need to spend $700 at minimum for what they essentially see as a children's toy.
In other words, while the reputable brands try to appeal to as many market segments as possible, they don't make junk. A Sirrus 1.0 isn't going to have the best components on it, but it's going to be reliable and will be worth maintaining. The department store bike is going to be built with extreme cost-cutting measures and is likely to malfunction relatively quickly, at which point the unsuspecting customer is faced with a repair bill that amounts to a significant percentage of the bikes cost and a warning from the mechanic that it's likely to fail again in short order. Yet the market for this stuff is huge, as most bikes (and guitars too, I imagine) are bought as part of a temporary enthusiasm that may or may not stick. A good bike is useless to someone who never rides it, much as a good guitar is useless to someone who doesn't know how to play it. It would be really easy for a reputable bike brand to stretch the bottom of their line to include junk that's sold at sporting goods stores and purchased by an ill-informed public who believes they're getting a better value than some no-name brand because they "heard Trek was good".
The reason why they don't do this is because when you get into extreme cost cutting territory, the profit margins become razor thin. This isn't a problem if the business model of the entire brand revolves around thin margins, but the bike companies are currently structured to be able to make money on well-heeled enthusiasts dropping several thousand dollars on higher margin items. If this customer base stops trusting the brand because they see it when they go grocery shopping, it turns into a race to the bottom where low-end sales become increasingly central to their business. This is basically what happened with GT and Diamondback, two reputable brands that got sold and the new owners tried to stretch into the low end. Those in the know knew that they still made good bikes, but new riders who instinctively knew that department store brands were junk didn't even consider them when looking to make their first serious purchase, and the retailers who carried the low-end models didn't carry the high-end ones, making them hard to find. I found this out myself when I was considering a GT that got good reviews. GT was sold at Dick's, but of course not that one, but they couldn't even order one for me, because big box stores don't operate like bike shops. I'd have to go to a GT authorized dealer to buy one, but of course there weren't any around me, because what independent bike shop owner in their right mind would try to compete with Dick's?
I think whether a brand is susceptible to this depends on which end of the market existed first. Prior to the 1970s, bikes were considered children's toys in the United States, and there wasn't much call for domestic companies to produce high-end models. When this market emerged in the 1970s, companies like Trek and Specialized filled the gap in the high end of the market, and while they would eventually grow to a wide range of models at different price points, they knew they never had a chance of competing with the Schwinns and Huffys of the world so they didn't try. Electric guitars were in the opposite situation; musical instruments were always known for being expensive, and in the early 1950s the few manufacturers making electric guitars were making them for the higher end of the market and thus able to charge prices commensurate with their quality. When rock took off in the 1960s and every kid wanted a guitar under the Christmas tree, CBS had to deal with the reality that most parents would balk at the cost of an instrument the kid would get frustrated with in a couple months, and their parents would choose some budget brand. It's easy to say in retrospect that they shouldn't have cut corners, but it's hard to make that decision in 1967 when sales are exploding and the bean counters at headquarters tell you you'll sell 10,000 more units next year f you can knock $20 off the price tag. And then 20 years later the older, good versions of your product have become iconic and the product practically markets itself, except you aren't going to sell that many models similar to the one Hendrix had if they all cost $3,000.
By the same token, they don't want to completely deprecate the brand, so they allowed the situation to become ridiculous. By all rights, Fender should offer their flagship Stratocaster and similar iconic models like the Telecaster in one mid- or high-range base model with 4 or 5 upgraded price points. Say the Stratocaster 100, which retails for $1800, up to the 400, which retails for $2400, or something along those lines. Or better yet, just sell one Srat for $2400 and be done with it. If they want to sell less expensive models then come up with model names and use those, with similar price points. And don't sell any junk; you aren't competing with the guitars Estaban sells on TV, so don't try. Instead they offer 94 models (literally) of Stratocaster ranging in price from a $250 Squier up to a $3500 Jeff Beck 1965 Signature Edition or whatever, and you can't tell which Stratocasters are good and which ones are bad based on the sub-models alone unless you really know guitars, and then they make things even more confusing by changing specs year by year so that you need to also look at the spec sheets to know that this year's version is selling at the same price as last year's but has inferior electronics, or something along those lines. It's just an example of doing things that make sense in the short term but metastasize into something unmanageable when compounded over several decades.
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This reminds me of Jacobs' concept of 'handmind'. The physical business of manipulating an instrument introduces resistance and friction, and perhaps also opportunity, that is not necessarily accessible otherwise.
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Interesting case study, thank you for explaining it for people who know little about guitars.
As far as niche hobbyist supplies, artist's paint companies have mostly maintained their brand identities, which I appreciate. Professional paints sometimes contain toxic substances, and so have to disclose the chemical makeup of their pigments, for instance this high end red paint uses, in place of a cadmium compound, "PY216-Rutile Tin Zinc, PR254-Pyrrole Red, and PV19-Quinacridone Violet", and lists information about each pigment. I like this system, it is very useful! I am happy that these paints are treated as potentially hazardous chemicals and clearly labeled by the serious brands.
The paint brands are differentiated primarily by their consistency and pigment load, with some creamier or stickier, with higher or lower tinting strength, with different preferences held by different artists, depending on what they're trying to do. It looks like the medium mixtures are proprietary, but the pigments are not.
Also, if you want a very specific oil pastel experience, you should still get the Sennelier's version.
I don't know if it matters very much, in that space, whether all the paint companies are ultimately owned by the same overarching corporation or not, as long as they make consistent products. But maybe there's some entertaining IP drama on behind the scenes.
Edit: I found it interesting to learn that glass casting brands are incompatible, they crack if you mix them, so glass artists have to go all in on one company and don't buy anything from the other. As I recall the main US art glass companies are located in New Mexico and Oregon, but the teacher I was learning from had moved from Oregon to New Mexico and brought her supplies, so she couldn't go to the excellent local glass store for supplies, she has to order them from another state.
Do you know why the different brands are incompatible? Is it a chemical thing?
Yes, it's chemistry based, I don't think they're antagonistic, but just developed and tested their glasses separately. Their website says they have different expansion and contraction rates when heated and cooled. Not being a materials science person, I don't really understand the reasoning behind it, something about different flux ratios and other chemical differences.
Ceramic glazes are also developed to heat at different temperatures, and in the 20th Century were classified into "cones" that droop at a certain point of heat absorption, so that a mid fire potter might look for "cone 6" clay and glazes, whereas a low fire potter, firing about 400 (f) cooler, might look for cone 06, which is weird but at least predictable and the different temperatures can be easily sold in the same store.
Edit: I'm not aware of any potters here, but Coyote Clay Glazes are great fun! They create different colors and effects based on kiln, location, thickness, and other idiosyncratic things, and each piece is unique and beautiful. Next time I'm firing, I want to try their "Texas two step" series, which creates spots by one glaze breaking over another.
This is why I am member of the Borosilicate Master Race. This is what the american Pyrex were once made of. Now I think that only the Simax and Schott are left of the traditional manufacturers.
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Related to my thoughts on Private Equity buying out local businesses, particularly those with lengthy presence in a community.
On the one hand you could chalk this up to just inevitable outcome of Capitalism where all goodwill, consumer surplus, and 'brand loyalty' is converted into shareholder value whenever possible.
I think its not inevitable, but just as in nature, any excess calories will invite predators, scavengers, or parasites to 'restore equilibrium.' "Oh boy, people will pay a bit of premium on this particular brand to gain status/ensure functionality/avoid copycats. Let's see how much money we can pump them for before they balk."
I kind of disagree that "the entire concept of 'brand' has been eroding."
Its starting to appear like the brand is now the only factor that matters, when the individual consumer is not independently able to judge the quality of their products.
One of the more stark examples is the apparent preference for the iPhone over any competitor, even though the average smartphones are almost identical in capabilities these days. The higher end Samsungs are usually better than the iPhone in terms of cutting-edge tech. But Apple has a TON of lock-in and goodwill purchsed during Steve Jobs' tenure, and current execs seem competent at maintaining that edge. (Yes, I know apple software itself has some real advantages over Android).
It feels like MBA-types are very keen about recognizing a brand-name that has a positive reputation (even or perhaps ESPECIALLY if the brand is all they have, they don't own any manufacturing capacity), and then 'rug-pulling' the fans/aficianados who 'bought in' while it was on the rise to squeeze a burst of cash from them even while removing those factors/features they most loved about the product itself.
This is perhaps most annoying to me because I think 'brand loyalty' is mostly a good thing insofar as there's an 'implicit' contract that the company will keep its products of generally the same sort of quality and, one hopes, pricing as they've been, absent some external forces acting upon them and the customers are able to buy said products without having to do extra research to know what they're getting. And usually don't have to worry about the customer service because the company knows repeat business will come so keeping satisfaction high is prioritized.
When the company changes ownership and management, they usually go right about breaking that implicit contract (ADMITTED that there is no legally enforceable cause of action here!) but are happy to coast off customers' belief that little has changed, and certainly won't ever explain that they're cutting corners to save costs.
I will believe this is about defense against taxation and antitrust judgments, and not capitalistic hypercompetition, until someone gives me sufficient evidence my priors are mistaken.
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Fender is notorious for this. They tend to reshuffle their product lines every year, and this inevitably results in a product line disappearing, only for a new product line with a nearly identical name appearing one quality tier down. It's reached the point where people are starting to catch on, because a lot of buyers on the used market are demanding a manufacturing date now.
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Another Intellectual Property disaster:
For the unfortunate fellows and fellas who aren't following the Italian brainrot universe, Tung Tung Tung Sahur is having legal issues (Fall Guys video for those illiterate or with short attention spans). Not one, but two companies are claiming to own the titular character, suing everyone including each other.
What's surprising about this case (to people who still believe in IP's integrity), neither company owns Mr. Sahur: AI-generated works are public domain in most countries including Indonesia (a draft regulation to change this has been proposed but not yet accepted), as they should be, in part because they themselves are trained on others' copyrighted data.
Yet the court case is delayed until October. In the meantime, he has been removed from the Roblox game Steal a Brainrot, played by over 25 million children and pedophiles (won't somebody think of the pedophiles?) This is no small drama: the game is so popular apparently a movie is being made about it, and by the time this is resolved, it may be too late to include him in the cast.
I just don't know how anyone can look at this and not feel...utterly dejected by the state of society. Copyright is a scourge, abused by large corporations and not actually benefiting small creators, and should be severely curtailed if not fully eliminated.
Court documents
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This sounds suspicious to me. I have no idea about Indonesia, but the usual criterion for copyright is creativity, not the tool. If you type a long prompt and then iterate and select after many generations, then it should be enough human creativity in there. And how the model creator got the training data should have no bearing on this. As long as it's not regurgitating a particular copyright protected character or image in that specific output, there should be no problem.
You didn't specify why any of these actors are claiming they own this character. That seems quite a big omission. If one of them is the original individual who used AI to make this character's image, then I'm actually on their side. It is a creative act to specify this nontrivial character form and presumably the prompt wasn't two or three words and they probably didn't pick the very first result.
In its complaint, Spyder Games quotes a 2023 statement of policy from the US Copyright Office.
This statement remains in force, though the Copyright Office is continuing to investigate the topic.
Spyder Games alleges in its complaint that the characters are AI-generated, but Mementum Lab actually denies this allegation in its amended counterclaim.
On page 9 of the amended counterclaim begins a five-paragraph section with the title "Defendant’s Creators Use an Involved, Artistic Process to Create Some of the Most Iconic Brainrot Characters, including Tung Tung Sahur", in which AI is not mentioned at all.
Policy statements are not dispositive. Cite the statute.
The statement mostly cites court decisions in support.
Modern AI systems are so far beyond anything we have seen before that I would treat these court opinions as advisory.
I want this to be the case that makes it to the Supreme Court. Meme magic is real.
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This seems useful for the case of a particular image, but I believe copyright extends to the full fictional character, like I can't draw e.g. Lion King characters even in novel settings and poses and make a product out of it, and this is not just due to trademarks, as I understand.
Now in that case, we'd need to know the very first original brainrot images. If the person created one version without AI, then also prompted some AIs to make the character, that presumably doesn't reset the copyright. Like, if I describe Simba's appearance to AI and it draws me a Lion, it doesn't mean it's now public domain. Of course one would have to prove there was a non AI version.
But if the fictional characters can be copyrighted as such, not specific renditions of them, then does the specific execution of a particular depiction really matter? The creativity is in the invention of the character itself.
What are the traditional elements, when it comes to the design of a character in the abstract, as opposed to the creation of a particular image as artwork?
(It's also a question what is with 3D renderers like Blender, which use complex shaders to make the final image. Is that traditional? How about photoshop and generative content fill? Does it have to involve mouse movements that move on top of the image? Or does it have to be deterministically predictable what it will look like if I click a button labeled "Render" as opposed to "Generate"? What's up with procedurally generated textures and terrains?)
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Mementum is partnered with the individual who created him, but they’re a corporation based in France. Judging by that and their name, they buy others’ fads to make money, for example by suing others for using them without a license.
There’s a valid argument that Tung Tung Tung Sahur shouldn’t be in any game without permission, and maybe this is less popular, but I still disagree. Steal a Brainrot doesn’t just include Mr. Sahur or make him the focus, he’s one of many characters. I’d rather see more remixes and compilation games like Super Smash Bros without insane corporate backing and licenses. If Tung Tung Tung Sahur’s creator was broke I’d want him to get some revenue from somewhere, but I believe he’s making more than enough from the character’s likeness already, why does he need more?
Actually, I’ll accept if Steal a Brainrot can’t make money off Mr. Sahur’s likeness, by for example selling him specifically. But at least any free media should be allowed to include him without being DMCAd.
I believe Roblox has made enough money already, why do they need more?
It’s not only Roblox but mainly Spyder Games. However I agree: I’ll accept if there’s a different way to fund them that digital games shouldn’t have copyright either, and I already believe Spyder Games shouldn’t be allowed to DMCA Steal a Brainrot copycats.
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At least in the United States, the specific rule is :
I don't know how well that will stand up to legal challenge. It's very rare to just give a prompt and get back a complex output. There's a lot of design, iteration, and thought.
Right. Generally, as I understand, copyright is very generous (when no AI is involved), in the sense that as long as you exercise the slightest creativity, they don't question stuff like "but you just randomly threw a pile of trash on the floor, that's not a sculpture" or "you just put a red square on white background, that's just geometry, not an art piece" etc. because that would kill a lot of contemporary "what even is art anyway" type of art.
So it seems like if you use a ControlNet, or any similar guidance, you're good for sure. But
Now if the user types "change the rhyme pattern to ... and make the lines shorter" and gets another poem fitting this requirement. Under the historical broad interpretation of "creativity" (which doesn't have to be impressive or painstakingly high effort), this would have to count as enough creative input I think.
Same with images. Today's AI chat apps can do iterative work on images that wasn't available in 2023 (when the doc was written), you could just re-generate with the same or a different prompt, but real editing wasn't possible. Today, you can tell ChatGPT what to change, and it will only change that part and keep the rest the same (as much as it can). So if you do 3 such iterations, each time specifically naming an aspect you want changed, that has to be enough... And what about selection? Is that exercise of creative judgment enough? Generate 10 Shakespeares and pick the one you like best? Based on the above text, I guess no. But what if you change your prompt inbetween?
I highly doubt the guy just sat down to the computer, typed out the perfect prompt for Tung Tung Sahur and got an image and he ran with that. He likely experimented with lots of weird and absurd character ideas and this one came out the funniest and he wrote and rewrote that prompt to make it maximally funny. It's absurd to deny him authorship for this.
That would be broadly my suspicion as well, with the caveat that the government and AI lobbyists may decide that the wind is blowing the wrong way and that some concessions on copyright may be needed to forestall serious rebellion/challenges to the training of AI as a whole.
Sorry I don't understand the polarity of which way you think it will go. You mean anti-AI people will get it their way and govt and pro-AI people will retreat, and refuse to grant "authorship" to AI-generated stuff, where AI-generated is broadly interpreted? Because that takes away the commercial value of AI art, hence AI art-making won't be profitable and hence not done, and hence human artists can keep making money?
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I’m somewhat confused by all this, but especially by the last screenshot, which shows that the plaintiffs are saying no one owns AI generated characters and are seeking a court order saying Momentum does not own them. This seems inconsistent with the narrative that Momentum is being sued because those other companies are saying they own the characters? What is actually happening?
Mementum (partnered with Tung Tung Tung Sahur’s creator) is threatening to sue Spyder Games (owner of Steal a Brainrot). Spyder Games is counter-suing Mementum to get official permission to use him, and the screenshot is from that. Spyder Games is simultaneously filing takedowns of Steal a Brainrot copycats.
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This seems like a strange conclusion when above you write that Fender can't whack all the moles undercutting them from the bottom and is powerless to do anything about those taking over the top of the market. It's difficult to say how profitable Fender is since it's private but given that it keeps changing hands it's hard to imagine it's a flourishing business. Seems like the market is giving them their just desserts, and hopefully this copyright thing won't undermine that. What's the problem here?
You're not exactly wrong, but I'm somewhat concerned about what kind of damage they can do on the way down. They've been doing a lot of acquisitions.
Here's a list of what I can remember off the top of my head.
They're pretty voracious.
I don't know anything about guitars so I'll have to take your word for it. But ultimately if there's so many companies to acquire and they still are being undercut it seems like the cost to entry to this field are not exactly massive and the bigger concern is regulation making stratocaster shaped guitars illegal rather than Fender somehow buying out all the competition. A fat monopolist with no moat is extremely attractive prey.
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In North America (the US and Canada), both Canada Dry and Schweppes are owned by the same company: Keurig Dr Pepper.
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