88Since the lack of genuine use of the earlier mark, when raised by the proprietor of a disputed EU trade mark in the context of an application for a declaration of invalidity, thus constitutes, in accordance with the wording of that provision, a reason justifying in itself the rejection of that application, it is without erring in law that the General Court held, in paragraph 76 of the judgment under appeal, that the question concerning the proof of that use had to be settled before a decision is taken on the application for a declaration of invalidity and, is, therefore, in that sense, a ‘preliminary issue’.
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