- 129 - 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, butPage: Previous 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 Next
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