To: | Yang, Chi (winstonwsoo@gmail.com) |
Subject: | U.S. Trademark Application Serial No. 88573718 - H LOWENTHAL - N/A |
Sent: | November 13, 2019 11:39:56 AM |
Sent As: | ecom115@uspto.gov |
Attachments: |
United States Patent and Trademark Office (USPTO)
Office Action (Official Letter) About Applicant’s Trademark Application
U.S. Application Serial No. 88573718
Mark: H LOWENTHAL
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Correspondence Address:
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Applicant: Yang, Chi
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Reference/Docket No. N/A
Correspondence Email Address: |
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The USPTO must receive applicant’s response to this letter within six months of the issue date below or the application will be abandoned. Respond using the Trademark Electronic Application System (TEAS). A link to the appropriate TEAS response form appears at the end of this Office action.
Issue date: November 13, 2019
The referenced application has been reviewed by the assigned trademark examining attorney. Applicant must respond timely and completely to the issue(s) below. 15 U.S.C. §1062(b); 37 C.F.R. §§2.62(a), 2.65(a); TMEP §§711, 718.03.
No Conflicting Marks Noted
Refusal – Mark is Primarily Merely a Surname
An applicant’s mark is primarily merely a surname if the surname, when viewed in connection with the applicant’s recited goods and/or services, “‘is the primary significance of the mark as a whole to the purchasing public.’” Earnhardt v. Kerry Earnhardt, Inc., 864 F.3d 1374, 1377, 123 USPQ2d 1411, 1413 (Fed. Cir. 2017) (quoting In re Hutchinson Tech. Inc., 852 F.2d 552, 554, 7 USPQ2d 1490, 1492 (Fed. Cir. 1988)); TMEP §1211.01.
The following five inquiries are often used to determine the public’s perception of a term’s primary significance:
(1) Whether the surname is rare;
(2) Whether anyone connected with applicant uses the term as a surname;
(3) Whether the term has any recognized meaning other than as a surname;
(4) Whether the term has the structure and pronunciation of a surname; and
(5) Whether the term is sufficiently stylized to remove its primary significance from that of a surname.
In re Eximius Coffee, LLC, 120 USPQ2d 1276, 1278 & n.2, 1282-83 (TTAB 2016) (citing In re Benthin Mgmt. GmbH, 37 USPQ2d 1332, 1333-34 (TTAB 1995) for the Benthin inquiries/factors); TMEP §1211.01; see also In re Etablissements Darty et Fils, 759 F.2d 15, 16-18, 225 USPQ 652, 653 (Fed. Cir. 1985).
These inquiries are not exclusive, and any of these circumstances – singly or in combination – and any other relevant circumstances may be considered when making this determination. In re Eximius Coffee, LLC, 120 USPQ2d at 1277-78; TMEP §1211.01. For example, when the applied-for mark is not stylized, it is unnecessary to consider the fifth inquiry. In re Yeley, 85 USPQ2d 1150, 1151 (TTAB 2007); TMEP §1211.01.
Applicant has applied for H LOWENTHAL for musical instruments.
Please see the attached evidence from LEXISNEXIS, establishing the surname significance of LOWENTHAL. This evidence shows the applied-for mark appearing 1559 times as a surname in the LEXISNEXIS® surname database, which is a weekly updated directory of cell phone and other phone numbers (such as voice over IP) from various data providers.
Thus, applicant may respond to this refusal by submitting evidence showing that the applied-for mark will be perceived by the purchasing public as a personal name, rather than as a surname. Such evidence may include a statement that the applied-for mark is the personal name of a particular living individual accompanied by evidence that this personal name would be recognized as such by the consuming public, and/or evidence that, as a general matter, surnames preceded by a single initial are commonly used in the United States as personal names of particular individuals and thus the applied-for mark will be perceived as such.
If applicant responds to this refusal by indicating that the applied-for mark is the personal name of a particular living individual, applicant must also submit (a) a statement that “H LOWENTHAL” identifies a living individual whose consent is of record” and (b) a written consent, personally signed by the individual whose name appears in the mark, authorizing applicant to register the name as a trademark and/or service mark with the USPTO. See TMEP §§813, 813.01(a), 1206.04(a).
Accordingly, registration is refused pursuant to Section 2(e)(4) of the Trademark Act.
Response Options
(1) Prior Registrations: Applicant may claim ownership of one or more active prior registrations on the Principal Register of the same mark for goods and/or services that are sufficiently similar to those named in the pending application. 37 C.F.R. §2.41(a)(1); TMEP §§1212, 1212.04. Applicant may do so by submitting the following statement, if accurate: “The mark has become distinctive of the goods and/or services as evidenced by the ownership of active U.S. Registration No(s). [specify] on the Principal Register for the same mark for sufficiently similar goods and/or services.” TMEP §1212.04(e).
(2) Five Years’ Use: Applicant may submit the following statement, verified with an affidavit or signed declaration under 37 C.F.R. §2.20: “The mark has become distinctive of the goods and/or services through the applicant’s substantially exclusive and continuous use of the mark in commerce that the U.S. Congress may lawfully regulate for at least the five years immediately before the date of this statement.” 37 C.F.R. §2.41(a)(2); TMEP §1212.05(d); see 37 C.F.R. §2.193(e)(1).
(3) Other Evidence: Applicant may submit other evidence of acquired distinctiveness, with the following statement, if accurate: “The evidence shows that the mark has become distinctive of the goods and/or services.” 37 C.F.R. §2.41(a)(3); TMEP §1212.06. Such additional evidence may include “advertising expenditures, sales success, length and exclusivity of use, unsolicited media coverage, and consumer studies (linking the name to a source).” In re Change Wind Corp., 123 USPQ2d 1453, 1467 (TTAB 2017) (quoting In re Steelbuilding.com, 415 F.3d 1293, 1300, 75 USPQ2d 1420, 1424 (Fed. Cir. 2005)).
Mark Appears Differently on Drawing and Specimen
Registration is refused because the specimen does not show the mark in the drawing in use in commerce in International Class 15, which is required in the application or amendment to allege use. Trademark Act Sections 1 and 45, 15 U.S.C. §§1051, 1127; 37 C.F.R. §§2.34(a)(1)(iv), 2.56(a); TMEP §§904, 904.07(a), 1301.04(g)(i). The mark appearing on the specimen and in the drawing must match; that is, the mark in the drawing “must be a substantially exact representation of the mark” on the specimen. See 37 C.F.R. §2.51(a)-(b); TMEP §807.12(a).
In this case, the specimen displays the mark as H. LÖWENTHAL. However, the drawing displays the mark as H LOWENTHAL. The mark on the specimen does not match the mark in the drawing because it includes a period after the “H” and an umlaut over the “O.” Applicant has thus failed to provide the required evidence of use of the mark in commerce. See TMEP §807.12(a).
Applicant may respond to this refusal by satisfying one of the following:
(1) Submit a new drawing of the mark that shows the mark on the specimen and, if appropriate, an amendment of the description and/or color claim that agrees with the new drawing. See 37 C.F.R. §2.72(a)-(b). The following amended description is suggested, if accurate: “The mark consists of [specify].” Applicant may amend the mark in the drawing to match the mark on the specimen but may not make any other changes or amendments that would materially alter the drawing of the mark. See 37 C.F.R. §2.72(a)-(b); TMEP §807.14.
(2) Submit a different specimen (a verified “substitute” specimen) for each applicable international class that (a) shows the mark in the drawing in actual use in commerce for the goods and/or services in the application or amendment to allege use, and (b) was in actual use in commerce at least as early as the filing date of the application or prior to the filing of an amendment to allege use.
Examples of specimens for goods include tags, labels, instruction manuals, containers, photographs that show the mark on the actual goods or packaging, and displays associated with the actual goods at their point of sale. See TMEP §§904.03 et seq. Webpages may also be specimens for goods when they include a picture or textual description of the goods associated with the mark and the means to order the goods. TMEP §904.03(i). Examples of specimens for services include advertising and marketing materials, brochures, photographs of business signage and billboards, and webpages that show the mark used in the actual sale, rendering, or advertising of the services. See TMEP §1301.04(a), (h)(iv)(C).
For more information about drawings and instructions on how to satisfy these response options online using the Trademark Electronic Application System (TEAS) form, see the Drawing webpage.
Specimen Unacceptable
Registration is refused because the specimen in International Class 15 appears to be mere advertising material and thus the specimen fails to show the applied-for mark in use in commerce. Trademark Act Sections 1 and 45, 15 U.S.C. §§1051, 1127; 37 C.F.R. §§2.34(a)(1)(iv), 2.56(a); TMEP §§904, 904.07(a).
Specifically, applicant submitted a promotional card, advertising its goods.
Advertising materials are generally not acceptable as specimens to show use in commerce for goods. See In re Kohr Bros., 121 USPQ2d 1793, 1794 (TTAB 2017) (quoting In re Quantum Foods, Inc., 94 USPQ2d 1375, 1379 (TTAB 2010)); TMEP §904.04(b), (c). Advertising materials may consist of the following: online advertising banners appearing on search engine result pages and in social media; advertising circulars and brochures; price lists; listings in trade directories; and business cards. See TMEP §904.04(b).
An application based on Trademark Act Section 1(a) must include a specimen showing the applied-for mark in use in commerce for each international class of goods identified in the application or amendment to allege use. 15 U.S.C. §1051(a)(1); 37 C.F.R. §§2.34(a)(1)(iv), 2.56(a); TMEP §§904, 904.07(a).
Examples of specimens for goods include tags, labels, instruction manuals, containers, photographs that show the mark on the actual goods or packaging, and displays associated with the actual goods at their point of sale. See TMEP §§904.03 et seq. Webpages may also be specimens for goods when they include a picture or textual description of the goods associated with the mark and the means to order the goods. TMEP §904.03(i).
Applicant may respond to this refusal by satisfying one of the following for each applicable international class:
(1) Submit a different specimen (a verified “substitute” specimen) that (a) was in actual use in commerce at least as early as the filing date of the application or prior to the filing of an amendment to allege use and (b) shows the mark in actual use in commerce for the goods identified in the application or amendment to allege use. A “verified substitute specimen” is a specimen that is accompanied by the following statement made in a signed affidavit or supported by a declaration under 37 C.F.R. §2.20: “The substitute (or new, or originally submitted, if appropriate) specimen(s) was/were in use in commerce at least as early as the filing date of the application or prior to the filing of the amendment to allege use.” The substitute specimen cannot be accepted without this statement.
(2) Amend the filing basis to intent to use under Section 1(b), for which no specimen is required. This option will later necessitate additional fee(s) and filing requirements such as providing a specimen.
For an overview of both response options referenced above and instructions on how to satisfy either option online using the Trademark Electronic Application System (TEAS) form, please go to the Specimen webpage.
TEAS PLUS OR TEAS REDUCED FEE (TEAS RF) APPLICANTS – TO MAINTAIN LOWER FEE, ADDITIONAL REQUIREMENTS MUST BE MET, INCLUDING SUBMITTING DOCUMENTS ONLINE: Applicants who filed their application online using the lower-fee TEAS Plus or TEAS RF application form must (1) file certain documents online using TEAS, including responses to Office actions (see TMEP §§819.02(b), 820.02(b) for a complete list of these documents); (2) maintain a valid e-mail correspondence address; and (3) agree to receive correspondence from the USPTO by e-mail throughout the prosecution of the application. See 37 C.F.R. §§2.22(b), 2.23(b); TMEP §§819, 820. TEAS Plus or TEAS RF applicants who do not meet these requirements must submit an additional processing fee of $125 per class of goods and/or services. 37 C.F.R. §§2.6(a)(1)(v), 2.22(c), 2.23(c); TMEP §§819.04, 820.04. However, in certain situations, TEAS Plus or TEAS RF applicants may respond to an Office action by authorizing an examiner’s amendment by telephone or e-mail without incurring this additional fee.
How to respond. Click to file a response to this nonfinal Office action
Marc J. Leipzig
/Marc J. Leipzig/
Law Office 115
Trademark Examining Attorney
Phone: (571) 272-2104
marc.leipzig2@uspto.gov
RESPONSE GUIDANCE
Search: |
Public Records : Surname |
Terms: |
last-name(lowenthal) maxresults(500) |
Total number found: 1559 |
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No. |
Name |
Address |
Phone |
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1. |
LOWENTHAL, A |
130 12TH |
609-516-3584 |
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2. |
LOWENTHAL, A |
3138 NE 32ND |
503-525-4685 |
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3. |
LOWENTHAL, A |
1102 SE 39TH APT 104 |
609-516-3584 |
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4. |
LOWENTHAL, A |
10 E DELAWARE PL APT 11B |
312-255-0300 |
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5. |
LOWENTHAL, A |
828 W GRACE APT 504 |
718-213-2358 |
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6. |
LOWENTHAL, A |
1606 MADRONE |
530-220-2859 |
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7. |
LOWENTHAL, A |
4495 MOUNT HERBERT |
619-865-8151 |
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8. |
LOWENTHAL, A W |
340 RIVERSIDE APT 10A |
212-666-3271 |
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9. |
LOWENTHAL, A |
24 TAMARACK RD |
845-647-2340 |
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10. |
LOWENTHAL, A |
DENVER, CO 80202 |
303-395-4593 |
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11. |
LOWENTHAL, A |
MIAMI, FL 33106-0001 |
305-688-4717 |
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12. |
LOWENTHAL, A |
NEW YORK, NY 10002 |
212-666-3290 |
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13. |
LOWENTHAL, A |
SAN FRANCISCO, CA 94107 |
415-624-6431 |
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14. |
LOWENTHAL, A |
SCARSDALE, NY 10583 |
914-725-5223 |
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15. |
LOWENTHAL, AARON |
13596 MAHOGANY |
916-224-3682 |
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16. |
LOWENTHAL, AARON |
JACKSON, NJ 08527 |
732-994-7319 |
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17. |
LOWENTHAL, AARON |
MAPLEWOOD, NJ 07040 |
973-327-4232 |
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18. |
LOWENTHAL, ABBE |
46 KEVIN |
201-424-1798 |
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19. |
LOWENTHAL, ABRAMS |
BALA CYNWYD, PA 19004 |
610-667-3440 |
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20. |
LOWENTHAL, ABRAMS |
MERION STATION, PA 19066 |
610-667-3440 |
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21. |
LOWENTHAL, ABRAMS |
MERION STATION, PA 19066 |
610-667-8382 |
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22. |
LOWENTHAL, ABRAO |
20201 E COUNTRY CLUB DR |
305-705-4057 |
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23. |
LOWENTHAL, ADAM |
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631-275-6564 |
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24. |
LOWENTHAL, ADAM |
COLORADO SPRINGS, CO 80903 |
719-375-5832 |
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25. |
LOWENTHAL, ADRIE |
130 12TH |
609-516-5508 |
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26. |
LOWENTHAL, AIMEE |
206 INSTITUTE APT 1 |
219-531-9006 |
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27. |
LOWENTHAL, AL |
PO BOX 1040 |
785-841-1041 |
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28. |
LOWENTHAL, ALAN S |
2809 E 1ST |
210-269-3658 |
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29. |
LOWENTHAL, ALAN |
91 FRIENDSHIP |
732-580-2524 |
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30. |
LOWENTHAL, ALAN J |
1020 SCOTT APT |
770-394-2654 |
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31. |
LOWENTHAL, ALAN |
CARSON, CA 90745 |
562-310-3024 |
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32. |
LOWENTHAL, ALBERT R |
1882 47TH ST |
718-871-7063 |
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33. |
LOWENTHAL, ALBERT |
241 CENTRAL W APT 7C |
212-874-1617 |
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34. |
LOWENTHAL, ALBERT |
188 MAMARONECK |
914-649-5894 |
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35. |
LOWENTHAL, ALBERT G |
2500 PARKVIEW APT 1705 |
954-454-8319 |
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36. |
LOWENTHAL, ALENA |
16928 91ST N |
305-301-3246 |
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37. |
LOWENTHAL, ALEX |
96 SPRING FL 4 |
617-459-2838 |
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38. |
LOWENTHAL, ALEX |
202 VALLEY |
617-459-2838 |
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39. |
LOWENTHAL, ALEX |
CENTEREACH, NY 11720 |
631-648-0360 |
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40. |
LOWENTHAL, ALEX |
PORTLAND, OR 97232 |
503-754-8874 |
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41. |
LOWENTHAL, ALEXA |
550 GENE FRIEND |
415-889-3164 |
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42. |
LOWENTHAL, ALEXANDER J |
3730 SW GROVER |
503-525-4685 |
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43. |
LOWENTHAL, ALEXIS |
2520 MAPLE CROSSING |
314-570-0034 |
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44. |
LOWENTHAL, ALICE M |
6320 CROSSWOODS |
703-354-8749 |
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45. |
LOWENTHAL, ALICIA |
PO BOX 283 |
850-879-5452 |
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46. |
LOWENTHAL, ALISA |
BIRMINGHAM, MI 48009 |
248-971-5235 |
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47. |
LOWENTHAL, ALISON |
7711 E CORNELL |
208-891-4560 |
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48. |
LOWENTHAL, ALYCIA L |
8 N HILLSIDE |
646-498-0891 |
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49. |
LOWENTHAL, AMANDA R |
111 E 80TH APT 9A |
718-717-7640 |
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50. |
LOWENTHAL, AMBER |
6909 S STATE ROAD 39 |
219-767-2967 |
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51. |
LOWENTHAL, AMIE-JO |
1450 12TH |
310-721-1879 |
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52. |
LOWENTHAL, AMY R |
225 W 106TH ST |
212-662-5728 |
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53. |
LOWENTHAL, AMY J |
1450 12TH APT C |
310-939-9015 |
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54. |
LOWENTHAL, AMY |
1410 AVENUE 1 |
718-338-6116 |
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55. |
LOWENTHAL, AMY |
259 BEACON |
617-594-4952 |
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56. |
LOWENTHAL, AMY S |
21 CARRIAGE |
781-861-1812 |
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57. |
LOWENTHAL, AMY C |
955 DECKER LN |
215-357-4274 |
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58. |
LOWENTHAL, AMY LAUREL |
346 OAKVIEW |
561-624-5991 |
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59. |
LOWENTHAL, AMY N |
473 RIDGE NW |
202-294-8020 |
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60. |
LOWENTHAL, AMY |
701 S UNIVERSITY |
334-343-7421 |
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61. |
LOWENTHAL, AMY |
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917-943-4514 |
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62. |
LOWENTHAL, AMY |
CHICAGO, IL 60614 |
773-315-5734 |
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63. |
LOWENTHAL, AMY |
ENCINO, CA 91316 |
818-448-0879 |
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64. |
LOWENTHAL, ANASTASIA |
1209 N MAIN |
217-891-6639 |
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65. |
LOWENTHAL, ANDRE |
2400 DURANT |
510-541-9760 |
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66. |
LOWENTHAL, ANDRE |
BELTSVILLE, MD 20705 |
240-731-4514 |
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67. |
LOWENTHAL, ANDRE |
GLEN ECHO, MD 20812 |
301-646-0676 |
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68. |
LOWENTHAL, ANDRE |
KIRKWOOD, MO 63122 |
314-607-1988 |
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69. |
LOWENTHAL, ANDRE |
KIRKWOOD, MO 63122 |
314-608-2609 |
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70. |
LOWENTHAL, ANDRE |
MARYLAND HEIGHTS, MO 63043 |
314-517-5862 |
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71. |
LOWENTHAL, ANDRE |
MARYLAND HEIGHTS, MO 63043 |
314-749-5056 |
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72. |
LOWENTHAL, ANDRE |
NEW YORK, NY 10001 |
917-902-6956 |
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73. |
LOWENTHAL, ANDRE |
ROCKVILLE, MD 20850 |
240-401-4187 |
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74. |
LOWENTHAL, ANDRE |
ROCKVILLE, MD 20850 |
240-428-1797 |
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75. |
LOWENTHAL, ANDRE |
SAINT LOUIS, MO 63105 |
314-607-1988 |
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76. |
LOWENTHAL, ANDRE |
SAINT LOUIS, MO 63114 |
314-324-4165 |
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77. |
LOWENTHAL, ANDRE |
SAINT LOUIS, MO 63132 |
314-322-6813 |
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78. |
LOWENTHAL, ANDRE |
SAINT LOUIS, MO 63132 |
314-517-5862 |
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79. |
LOWENTHAL, ANDREA |
250 W 94TH |
212-662-5324 |
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80. |
LOWENTHAL, ANDREA |
101 BROAD UNIT 7B |
212-662-5324 |
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81. |
LOWENTHAL, ANDREA |
1605 HIGH FALLS |
518-678-9047 |
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82. |
LOWENTHAL, ANDREA |
1605 HIGH FALLS UNIT L |
518-678-9047 |
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83. |
LOWENTHAL, ANDREW H |
30 BARTON |
856-439-0366 |
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84. |
LOWENTHAL, ANDREW G |
6 BRYANT DR |
973-533-0355 |
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85. |
LOWENTHAL, ANDREW J |
1294 GARVEY |
607-278-5219 |
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86. |
LOWENTHAL, ANDREW |
13145 RED FERN |
972-517-0929 |
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87. |
LOWENTHAL, ANDREW S |
12006 RIVER |
301-983-8323 |
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88. |
LOWENTHAL, ANDY P |
1013 CUTTER |
702-254-8038 |
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89. |
LOWENTHAL, ANDY |
4536 N SACRAMENTO AVE |
773-478-4708 |
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90. |
LOWENTHAL, ANGEL |
HARTFORD, CT 06101 |
860-380-0121 |
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91. |
LOWENTHAL, ANGELA |
216 N FULTON |
914-668-9218 |
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92. |
LOWENTHAL, ANGELA |
23 WHITEHALL |
860-716-6965 |
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93. |
LOWENTHAL, ANGLA |
10 KINGSLEY |
860-313-8092 |
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94. |
LOWENTHAL, ANIA |
3080 BRISTOL |
714-438-4235 |
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95. |
LOWENTHAL, ANIA |
3080 BRISTOL |
714-438-4235 |
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96. |
LOWENTHAL, ANN |
670 W END AVE |
212-724-2741 |
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97. |
LOWENTHAL, ANN H |
4586 GATETREE |
706-372-5133 |
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98. |
LOWENTHAL, ANN H |
4586 GATETREE |
925-846-8924 |
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99. |
LOWENTHAL, ANN Z |
48 SIDNEY PL |
718-643-5329 |
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100. |
LOWENTHAL, ANNA |
FAIRFIELD, CA 94533 |
707-290-5071 |
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