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scrutinize the activities of each of the parties compensated in
the list rental transaction to ascertain whether they are
undertaken to exploit or protect petitioner's list. Hereinafter,
we refer to activities which are undertaken to exploit or protect
the list as royalty-related activities.
Names
In a list rental transaction, Names' activities as list
manager include: (1) Promoting list rental transactions
involving petitioner's rental list via distribution of data
cards, solicitations, and personal sales calls directed at list
brokers and potential customers; (2) approving or disapproving
all list rental orders from mailers by applying petitioner's
standing instructions or forwarding the order to petitioner for
final approval; (3) arranging with Triplex to fill the order; (4)
billing the mailer or the mailer's list broker; (5) paying
Triplex the amounts it is owed; and (6) remitting payment to
petitioner.
In the context of the list rental transaction, a list owner
has certain intangible information regarding the individuals and
entities whose names and addresses appear on its list.
Specifically, the list owner knows that such individuals and
entities are responsive to direct mail and willing to support
certain tax-exempt organizations. To exploit that knowledge, the
list owner must first let others know that the list is available.
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