FIRST LIEN SECURED NOTE NOTICE AND CONFIRMATION OF GRANT OF SECURITY INTEREST IN TRADEMARKS
Exhibit 10.34
EXECUTION VERSION
FIRST XXXX SECURED NOTE NOTICE AND CONFIRMATION OF GRANT OF SECURITY INTEREST IN TRADEMARKS
THIS FIRST LIEN SECURED NOTE NOTICE AND CONFIRMATION OF GRANT OF SECURITY INTEREST IN TRADEMARKS (this “Agreement”), dated as of December [4], 2014, is made by each of the signatories hereto (each, a “Grantor”) in favor of WILMINGTON TRUST, NATIONAL ASSOCIATION (“Wilmington Trust”), as note collateral agent (in such capacity, the “Note Collateral Agent”) with respect to the 5.25% Senior Secured First Priority Notes due 2021 (the “Notes”) issued by HD SUPPLY, Inc., a Delaware corporation (the “Company”) pursuant to the Indenture, dated as of the date hereof (as amended pursuant to that First Supplemental Indenture, dated as of the date hereof, and as further amended, amended and restated, waived, supplemented or otherwise modified from time to time, the “Indenture”), among the Company, the Subsidiary Guarantors from time to time parties thereto, and Wilmington Trust.
WHEREAS, pursuant to the Collateral Agreement, dated as of the date hereof (as amended, amended and restated, waived, supplemented or otherwise modified from time to time, the “Collateral Agreement”), among the Company, certain Subsidiaries of the Company and the Note Collateral Agent, each Grantor granted to the Note Collateral Agent a security interest in its Intellectual Property, including Trademarks; and
WHEREAS, each Grantor has duly authorized the execution, delivery and performance of this Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, subject to the conditions of the Indenture, each Grantor agrees, for the benefit of the Note Collateral Agent, as follows:
SECTION 1. Definitions. Unless otherwise defined herein or the context other-wise requires, terms used in this Agreement, including its preamble and recitals, have the meanings provided or provided by reference in the Indenture and the Collateral Agreement.
SECTION 2. Confirmation of Security Interest. Each Grantor hereby confirms that pursuant to the Collateral Agreement, subject to existing licenses to use the Trademarks granted by such Grantor in the ordinary course of its business, it granted to the Note Collateral Agent, for the benefit of the Secured Parties, a security interest in all of the Trademarks of such Grantor (including, without limitation, those items listed on Schedule A hereto under such Grantor’s name) and to the extent not otherwise included, all Proceeds and products of any and all of the Trademarks, as collateral security for the prompt and complete payment and performance when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations of such Grantor, except that no security interest is or will be granted pursuant thereto or any other Note Security Document in any right, title or interest of such Grantor under or in any Trademark
Licenses with Persons other than the Company, a Restricted Subsidiary or an Affiliate thereof for so long as, and to the extent that, the granting of such a security interest pursuant thereto would result in a breach, default or termination of such Trademark Licenses.
SECTION 3. Purpose. This Agreement has been executed and delivered by the Grantors for the purpose of recording the security interest granted pursuant to the Collateral Agreement with the United States Patent and Trademark Office. This Agreement is expressly subject to the terms and conditions of the Collateral Agreement. The Collateral Agreement (and all rights and remedies of the Note Collateral Agent thereunder) shall remain in full force and effect in accordance with its terms.
SECTION 4. Acknowledgment. Each Grantor does hereby further acknowledge and affirm that the rights and remedies of the Note Collateral Agent with respect to the security interest in the Trademarks are fully set forth in the Indenture and the Collateral Agreement, the terms and provisions of which (including the remedies provided for therein) are incorporated by reference herein as if fully set forth herein.
SECTION 5. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together constitute one and the same original.
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[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their respective officers thereunto duly authorized as of the day and year first above written.
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HD SUPPLY REPAIR & REMODEL, LLC | ||
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By: |
/s/ Xxxxxxx Xxxxx | |
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Name: |
Xxxxxxx Xxxxx |
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Title: |
Vice President and Secretary |
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HD SUPPLY FACILITIES MAINTENANCE, LTD. | ||
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By: |
HD Supply GP & Management, Inc., | |
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its general partner | |
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By: |
/s/ Xxxxxxx Xxxxx | |
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Name: |
Xxxxxxx Xxxxx |
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Title: |
Vice President and Secretary |
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HDS IP HOLDING, LLC | ||
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By: |
/s/ Xxxxxxx Xxxxx | |
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Name: |
Xxxxxxx Xxxxx |
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Title: |
Vice President and Secretary |
[Signature Page to First Lien Secured Note Notice and Confirmation of Grant of Security Interest in Trademarks]
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HSI IP, INC. | ||
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By: |
/s/ Xxxxxxx Xxxxx | |
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Name: |
Xxxxxxx Xxxxx |
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Title: |
Vice President and Secretary |
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HD SUPPLY SUPPORT SERVICES, INC. | ||
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By: |
/s/ Xxxxxxx Xxxxx | |
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Name: |
Xxxxxxx Xxxxx |
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Title: |
Vice President and Secretary |
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PROVALUE, LLC | ||
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By: |
/s/ Xxxxxxx Xxxxx | |
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Name: |
Xxxxxxx Xxxxx |
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Title: |
Vice President and Secretary |
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WHITE CAP CONSTRUCTION SUPPLY, INC. | ||
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By: |
/s/ Xxxxxxx Xxxxx | |
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Name: |
Xxxxxxx Xxxxx |
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Title: |
Vice President and Secretary |
[Signature Page to First Lien Secured Note Notice and Confirmation of Grant of Security Interest in Trademarks]
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WILMINGTON TRUST, NATIONAL ASSOCIATION | ||
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As Note Collateral Agent | ||
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By: |
/s/ Xxxx X. Xxxxxxx | |
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Name: |
Xxxx X. Xxxxxxx |
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Title: |
Vice President |
[Signature Page to First Lien Secured Note Notice and Confirmation of Grant of Security Interest in Trademarks]
Schedule A
Trademarks
HD Supply Repair & Remodel, LLC
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TRADEMARK |
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Status |
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Ser. No./Reg. No. |
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App. Date/Reg. |
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CW CONTRACTORS’ WAREHOUSE and Design |
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Registered |
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RN: 1,753,027 |
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2/16/1993 |
HD Supply Facilities Maintenance, Ltd.
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TRADEMARK |
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Status |
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Ser. No./Reg. No. |
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App. Date/Reg. |
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MAINTENANCE WAREHOUSE |
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Registered |
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RN: 3,563,112 |
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1/20/2009 |
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MAINTENANCE WAREHOUSE |
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Registered |
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RN: 4,610,425 |
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9/23/2014 |
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MAINTENANCE WAREHOUSE |
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Registered |
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RN: 4,375,851 |
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7/30/2013 |
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MAINTENANCE WAREHOUSE & Design |
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Registered |
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RN: 4,376,494 |
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7/30/2013 |
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MAINTENANCE WAREHOUSE & Design |
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Registered |
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RN: 4,606,259 |
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9/16/2014 |
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AMERIFILE |
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Registered |
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RN: 3,688,792 |
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9/29/2009 |
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ESSENTIAL PRODUCTS FOR AN EFFICIENT PRACTICE |
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Registered |
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RN: 3,683,191 |
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9/15/2009 |
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WALLSTRETCHER |
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Registered |
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RN: 2,311,197 |
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1/25/2000 |
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AMERIFILE (and design) |
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Registered |
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RN: 2,231,634 |
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3/16/1999 |
HDS IP Holding, LLC
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TRADEMARK |
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Status |
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Ser. No./Reg. No. |
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App. Date/Reg. |
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ALWAYS ON THE JOB |
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Registered |
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RN: 4,079,895 |
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1/3/2012 |
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AQUAGUARD |
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Registered |
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RN: 0,720,199 |
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8/22/1961 |
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AQUAGUARD 5 STEP POOL CARE SYSTEM & Design |
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Registered |
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RN: 4,535,768 |
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05/27/2014 |
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AQUATRAC |
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Registered |
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RN: 2,945,650 |
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5/3/2005 |
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ASPEN |
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Registered |
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RN: 2,455,675 |
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05/29/2001 |
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ASPEN & Design |
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Registered |
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RN: 4,461,343 |
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1/7/2014 |
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BEST BUSINESS ELECTRONIC SOLUTION TECHNOLOGIES (stylized) |
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Registered |
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RN: 3,611,013 |
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4/28/2009 |
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BRIGADE (Multistar stylization) |
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Registered |
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RN: 3,845,600 |
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9/7/2010 |
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BRIGADE (Multistar stylization) |
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Registered |
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RN: 3,928,403 |
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3/8/2011 |
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BRIGADE (star stylization) |
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Registered |
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RN: 3,865,925 |
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10/19/2010 |
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BRIGHTON |
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Registered |
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RN: 3,086,948 |
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5/2/2006 |
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BRIGHTON MANOR |
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Registered |
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RN: 4,129,736 |
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4/17/2012 |
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BRIGHTON MANOR & Design |
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Registered |
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RN: 4,535,779 |
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5/27/2014 |
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CHAMPION |
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Registered |
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RN: 2,995,438 |
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09/13/2005 |
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CHAMPION WINDOW COVERINGS & Design |
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Registered |
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RN: 3,535,469 |
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11/18/2008 |
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CLEARCAN |
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Registered |
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RN: 2,887,975 |
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9/21/2004 |
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COREPRO |
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Registered |
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RN: 2,426,425 |
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2/6/2001 |
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COTTON BAY |
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Registered |
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RN: 3,627,904 |
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5/26/2009 |
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COTTON BAY |
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Registered |
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RN: 3,679,770 |
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9/8/2009 |
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CREATIVE TOUCH INTERIORS |
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Registered |
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RN: 4,406,141 |
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9/24/2013 |
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CROWN BOLT |
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Registered |
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RN: 1,644,947 |
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5/21/1991 |
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DUROGUARD |
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Registered |
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RN: 4,140,616 |
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5/15/2012 |
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FIDO HOUSE & Design |
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Registered |
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RN: 2,736,417 |
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7/15/2003 |
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GREENBLOGIC |
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Registered |
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RN: 4,155,442 |
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6/5/2012 |
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GRIDADVANCE |
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Registered |
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RN: 4,538,054 |
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5/27/2014 |
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HD SUPPLY |
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Registered |
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RN: 3,559,162 |
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1/6/2009 |
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HD SUPPLY (logo) |
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Registered |
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RN: 3,454,324 |
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6/24/2008 |
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HD SUPPLY (logo) |
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Registered |
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RN: 3,550,632 |
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12/23/2008 |
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HD SUPPLY HARDWARE SOLUTIONS(1) |
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Registered |
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RN: 114-257 |
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3/4/2014 |
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HD SUPPLY FIRE PROTECTION (stylized) |
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Registered |
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RN: 3,671,809 |
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8/25/2009 |
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HD SUPPLY WATERWORKS (stylized) |
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Registered |
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RN: 3,468,515 |
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7/15/2008 |
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HOUSE-MATES HARDWARE |
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Registered |
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RN: 2,286,367 |
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10/12/1999 |
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I (stylized) |
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Registered |
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RN: 3,679,438 |
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9/8/2009 |
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IDEALLYGREEN |
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Registered |
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RN: 3,523,340 |
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10/28/2008 |
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LOCAL SERVICE NATIONWIDE |
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Registered |
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RN: 3,665,886 |
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8/11/2009 |
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MAINTENANCE WAREHOUSE |
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Pending |
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SN: 86/303,044 |
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6/6/2014 |
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MAINTENANCE WAREHOUSE |
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Pending |
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SN: 86/424,236 |
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10/15/2014 |
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PANEL-PRO TILT-UP ESTIMATING SOFTWARE & Design |
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Registered |
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RN: 2,901,054 |
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11/9/2004 |
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PERFECT SEAL |
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Registered |
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RN: 4,001,186 |
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7/26/2011 |
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POWERSCOPE |
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Registered |
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RN: 3,461,922 |
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7/8/2008 |
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PROUDLY DRIVEN BY A VETERAN |
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Pending |
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SN: 86/320,061 |
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6/25/2014 |
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PROVALUE |
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Registered |
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RN: 2,863,412 |
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7/13/2004 |
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RELIA+ |
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Pending |
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SN: 86/436,537 |
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10/28/2014 |
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RELIA+ |
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Pending |
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SN: 86/436,545 |
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10/28/2014 |
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RELIA+ |
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Pending |
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SN: 86/436,549 |
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10/28/2014 |
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RELIACARE |
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Registered |
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RN: 4,492,443 |
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3/4/2014 |
(1) This trademark is registered in the State of Alabama.
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SEASONS |
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Pending |
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SN: 86/373,220 |
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8/21/2014 |
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SEASONS |
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Pending |
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SN: 86/373,226 |
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8/21/2014 |
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SEASONS |
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Pending |
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SN: 86/435,093 |
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10/27/2014 |
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SEASONS |
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Pending |
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SN: 86/435,138 |
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10/27/2014 |
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SEASONS (stylized) |
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Registered |
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RN: 3,835,518 |
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8/17/2010 |
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SEASONS GOLD (stylized) |
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Registered |
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RN: 3,850,430 |
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9/21/2010 |
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SHIELD SECURITY |
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Registered |
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RN: 2,949,257 |
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5/10/2005 |
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SPEEDBUILD |
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Allowed |
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SN: 86/160,304 |
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1/8/2014 |
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SPEEDBUILD |
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Allowed |
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SN: 86/160,701 |
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1/8/2014 |
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TOTAL CHOICE ADVANTAGE PROGRAM |
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Registered |
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RN: 3,911,575 |
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1/25/2011 |
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TRUESTOCK |
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Pending |
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SN: 86/373,181 |
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8/21/2014 |
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TRUESTOCK |
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Pending |
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SN: 86/373,202 |
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8/21/2014 |
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TRU PERSPECTIVE |
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Pending |
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SN: 86/309,319 |
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6/13/2014 |
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USA BLUEBOOK and Design |
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Registered |
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RN: 2,266,004 |
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8/3/1999 |
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USABLUEBOOK |
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Registered |
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RN: 2,236,393 |
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4/6/1999 |
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UTILITY SUPPLY OF AMERICA |
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Registered |
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RN: 2,252,348 |
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6/15/1999 |
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VISTRA |
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Registered |
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RN: 3,895,271 |
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12/21/2010 |
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VISTRA & Design |
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Registered |
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RN: 4,392,346 |
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8/27/2013 |
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WE BUILD YOUR CITY AND KEEP IT RUNNING |
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Registered |
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RN: 4,374,791 |
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7/30/2013 |
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WE GOT IT YOU GET IT AND YOU’RE GONE |
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Registered |
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RN: 3,632,249 |
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6/2/2009 |
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HOME IMPROVEMENT PRODUCTS DIRECT and Design |
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Registered |
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RN: 3,478,426 |
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7/29/2008 |
HSI IP, Inc.
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TRADEMARK |
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Status |
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Ser. No./Reg. No. |
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App. Date/Reg. |
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BAJA |
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Registered |
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RN: 2,243,286 |
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5/4/1999 |
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ELASCO |
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Registered |
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RN: 1,818,239 |
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1/25/1994 |
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ELASCO (stylized) |
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Registered |
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RN: 1,843,279 |
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7/5/1994 |
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XXXXXX |
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Registered |
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RN: 2,288,983 |
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10/26/1999 |
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MINALOY |
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Registered |
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RN: 1,033,014 |
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2/10/1976 |
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MINE TUFF |
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Registered |
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RN: 1,381,417 |
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2/4/1986 |
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RIO |
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Registered |
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RN: 1,929,737 |
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10/24/1995 |
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THE SOURCE |
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Registered |
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RN: 2,360,623 |
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06/20/2000 |
HD Supply Support Services, Inc.
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TRADEMARK |
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Status |
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Ser. No./Reg. No. |
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App. Date/Reg. |
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HD SUPPLY SUPPORT SERVICES, INC. |
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Registered |
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RN: 3,835,928 |
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8/17/2010 |
ProValue, LLC
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TRADEMARK |
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Status |
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Ser. No./Reg. No. |
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App. Date/Reg. |
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PROVALUE |
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Registered |
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RN: 3,545,345 |
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12/9/2008 |
White Cap Construction Supply, Inc.
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TRADEMARK |
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Status |
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Ser. No./Reg. No. |
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App. Date/Reg. |
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BLACK MARLIN |
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Registered |
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RN: 3,299,068 |
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9/25/2007 |
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CONTRACTOR TRADER |
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Registered |
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RN: 2,997,227 |
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9/20/2005 |
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PANEL-PRO |
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Registered |
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RN: 2,966,934 |
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7/12/2005 |
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WC and Design |
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Registered |
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RN: 2,385,183 |
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9/12/2000 |
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WHITE CAP |
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Registered |
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RN: 3,048,812 |
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1/24/2006 |
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WHITE CAP (Stylized) |
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Registered |
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RN: 3,026,834 |
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12/13/2005 |
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WHITE CAP (stylized) |
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Registered |
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RN: 1,478,065 |
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2/23/1988 |
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WHITE CAP CONSTUCTION SUPPLY |
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Registered |
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RN: 2,927,946 |
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2/22/2005 |
