66As to the substance, it is true that recital 6 in the preamble to Directive 2008/95 states, inter alia, that Member States should remain free to fix the procedural provisions concerning the invalidity of trade marks acquired by registration and determine, for example, the form of invalidity procedures. However, it cannot be inferred that the question of the burden of proof concerning distinctive character acquired through use in the context of invalidity proceedings pursuant to Article 3(1)(b), (c) or (d) of Directive 2008/95 constitutes such a procedural provision falling within the competence of Member States.
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