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shall be given to the relative amounts of all the
direct and indirect costs of development and the
corresponding risks of development borne by the various
members of the group * * *. * * * Other factors that
may be relevant in determining which member of the
group is the developer include the location of the
development activity, the capabilities of the various
members to carry on the project independently, and the
degree of control over the project exercised by the
various members.
In this regard, petitioners argue that DHLI bore the costs
and risks of registering, protecting, and promoting the trademark
outside the United States. Respondent counters that petitioners
cannot isolate the registration of the trademark outside the
United States as making DHLI the developer. Respondent explains
that DHLI is a licensee, and there has been no showing that the
costs incurred for registration and/or enhancement of the
trademark were more than a licensee would have expended at arm’s
length. In addition, respondent points out that the DHL network,
at least in the customer’s or the public eye, was a single
network and that, therefore, any enhancement was not readily
segregable for purposes of allocation. Respondent also questions
which of the DHLI/MNV entities bore the cost of advertising or
marketing the trademark outside the United States. In that
connection, it was the international operating subsidiaries, and
perhaps agents, that bore those costs in their respective
countries, and they were mostly MNV subsidiaries. Finally, we
cannot ignore the paradox of petitioners’ argument. How can it
be that DHLI spent hundreds of millions of dollars developing
(advertising) the DHL trademark outside the United States, but
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