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intended not to be responsible for marketing efforts with regard
to the credit card program, except to exercise its approval
rights with respect to ABS’s efforts in that regard. Indeed,
Michael McCloskey, chairman of Sierra Club, testified that, at
the inception of the credit card program, he anticipated that the
only staff resources that petitioner would have to devote to the
program would be “a bit” of the time of Leonard Levitt, then
director of finance and administration, and that no additional
office space would be necessary. Mr. McCloskey was credible, and
his testimony supports our conclusion that, in entering into the
SC-ABS agreement, petitioner did not contemplate being in the
marketing business or performing marketing services for
compensation.
c. Safeguarding Intangible Property Rights
We do not view petitioner’s actual exercise of its rights
and duties under the SC-ABS agreement as amounting to the
performance of services. Petitioner acted to safeguard its
intangible property interests. Article 4.2 placed the
responsibility for developing marketing materials on ABS.
Petitioner exercised its right of approval and, as a result, the
“pitch” of ABS’s marketing proposals was “toned down”, and
proposals for telemarketing, membership solicitation and drive
packages, membership renewal packages, automatic membership
renewal, and automatic monthly billing of contributions were
eliminated from the marketing plan. ABS’s presentation of its
initial marketing plan (the initial plan) and petitioner’s
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