53In that regard, the General Court found, at paragraphs 164 to 167 of the judgment under appeal, that:— Article 8(4) of Regulation No 40/94 does not refer to the ‘genuine’ use of the sign relied on in support of the opposition;— in connection with Article 9(1) of Regulation No 40/94 and Articles 5(1) and 6(1) of First 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 Court of Justice and the General Court have consistently held that a sign is used in the ‘course of trade’ when that use occurs in a commercial activity with a view to economic advantage and not as a private matter (see inter alia Case C-206/01 Arsenal Football Club [2002] ECR I-10273, paragraph 40);— the application by analogy of Article 43(2) and (3) of Regulation No 40/94 would impose on signs covered by Article 8(4) requirements specifically linked to trade marks and the extent of their protection. The latter provision also contains the additional requirement, not laid down Article 8(1)(b) of Regulation No 40/94, concerning proof that the sign confers the right, under the law of the Member State concerned, to prohibit use of a subsequent mark;— the application by analogy of Article 43(2) and (3) caused the Board of Appeal to undertake separate assessments of use of the sign concerned in only France, Italy, Austria and Portugal, in other words in each of the territories where, according to Budvar, the appellation ‘bud’ is protected and, consequently, to disregard the evidence produced by Budvar relating to the use of the appellations concerned in Benelux, Spain and the United Kingdom. In the General Court’s view, since it does not follow from the wording of Article 8(4) of Regulation No 40/94 that signs such as those at issue must be used in the territory whose law is invoked in support of the protection of that sign, they may enjoy protection in a particular territory, even though they are not used in that territory.
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