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DHLI under the 1974 MOA and subsequent amendments and that
petitioners have failed to show that any expenditures incurred by
DHLI were more than would have been incurred at arm’s length
under those circumstances so as to trigger the need for an
allocation under the regulations.
Our review of the regulations and some of the examples cited
therein lead us to the conclusion that petitioners’
interpretation does not work when applied to the facts in our
record. First, there was no specific cost-sharing agreement with
respect to development, enhancement, or maintenance of the DHL
trademark. Petitioners have presented evidence that, over a
period of years, DHLI spent substantially more on advertising
than DHL. We have no way of measuring those expenditures’ effect
on the value of the trademark. That is especially so where
petitioners’ experts, in contradiction to petitioners’ argument
on this point, opined that the trademark has limited value and
that the excess value of DHLI that may be indicated is
attributable to intangibles other than the trademark. Having
found a value higher than what petitioners argue was the limit,
petitioners argue that DHLI is the developer of the non-U.S.
portion and is responsible for the value we have found.
Petitioners then contend that respondent should have reduced any
adjustment to DHL based on an arm’s-length or fair market value
by the amount attributable to DHLI in developing or assisting in
developing the non-U.S. trademark.
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