- 23 -
Petitioner, thus, had control over those materials and programs
by way of its power to negate. As discussed infra in section
V.B.2.c, we believe that such control was exercised by petitioner
to safeguard the valuable intangible property rights that it had
licensed to ABS. In theory, at least, petitioner’s power to
negate could allow petitioner to assume responsibility for
development of the marketing program. Practicably speaking,
however, such responsibility does not appear to have been
intended, since the SC-ABS agreement contains no provision to
compensate ABS for following petitioner’s directions except if
petitioner elects to bear solicitation costs, Article 4.3, or
requests certain nonroutine actions, Article 4.4.
Petitioner’s other significant rights under the SC-ABS
agreement do not give petitioner control directly or indirectly
over any marketing plan. Article 3.2 provides that petitioner is
entitled to monthly accountings from ABS from which it can
determine total cardholder sales volume and its share thereof.
Article 3.5 prohibits ABS from using petitioner's name or marks
without its consent. Article 6 generally holds petitioner
harmless from losses except as otherwise specified.
Article 6.3 provides that the agreement is not to be
construed as constituting an agent-principal relationship between
petitioner and ABS, which tends to eliminate one kind of control
over marketing that respondent has implied.
Article 2.1 sets forth petitioner’s principal duty with
respect to the SC-ABS agreement: “SC agrees to cooperate with
Page: Previous 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 NextLast modified: May 25, 2011