39As is apparent from the judgment of the Court of Justice in Case C-40/01 Ansul [2003] ECR I-2439 concerning the interpretation of Article 12(1) of Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1), the provisions of which correspond in essence to those of Article 43(2) of Regulation No 40/94, there is genuine use of a trade mark where the mark is used in accordance with its essential function, which is to guarantee the identity of the origin of the goods or services for which it is registered, in order to create or preserve an outlet for those goods or services; genuine use does not include token use for the sole purpose of preserving the rights conferred by the mark (Ansul, paragraph 43). In that regard, the condition relating to genuine use of the trade mark requires that the mark, as protected on the relevant territory, be used publicly and outwardly {Ansul, paragraph 37, and Silk Cocoon v OHIM, paragraph 39).
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