37Under Rule 22(2) of Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1), evidence of use must concern the place, time, extent and nature of use of the earlier trade mark. However, the opposing party is not obliged to submit an affidavit concerning the sales made under the earlier trade mark. Articles 43(2) and 76 of Regulation No 40/94 and Rule 22(3) of Regulation No 2868/95 leave it to the opposing party to select the form of evidence which he considers suitable for the purpose of establishing that the earlier trade mark was put to genuine use during the relevant period. Therefore, the applicant's complaint about the failure to submit an affidavit concerning the total turnover resulting from sales of the products made under the earlier trade mark must be rejected.
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