Sierra Club, Inc. - Page 21




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          notwithstanding the lack of particular language setting forth               
          ABS's right of access to the members, we think it clear that such           
          access is a key component of ABS's rights under the SC-ABS                  
          agreement, to be accomplished by the use (license) of                       
          petitioner's mailing lists to ABS.                                          
               We conclude that the SC-ABS agreement made available for               
          ABS's use petitioner's name, marks, logo, and certain other                 
          intangible property used in marketing (such as facsimile                    
          signatures of petitioner’s officers), as well as provided ABS               
          access to the members by way of petitioner's mailing lists.  The            
          financial consideration petitioner received under the SC-ABS                
          agreement (the receipts), therefore, was, at least in part,                 
          consideration for the use of valuable intangible property, and as           
          such constituted royalties within the meaning of section                    
          512(b)(2).  See supra sec. III.                                             
               B.  Petitioner Did Not Receive Payments for Services                   
                    1.  Introduction                                                  
               We now turn to the question of whether any part of the                 
          receipts was received by petitioner in consideration of its                 
          services.  In the context of its argument that petitioner was in            
          the business of marketing the credit card program to the members,           
          respondent argues that petitioner was compensated for performing            
          the following services:  (1) controlling the marketing plans, (2)           
          offering the affinity credit card as a member service, (3)                  
          placing advertisements for the affinity credit card in its                  
          magazines and local publications, (4) allowing solicitations to             

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