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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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