38As regards the concept of ‘use in the course of trade’, the Court has already held that the list of types of use that the proprietor of the trade mark may prohibit, contained in Article 5(3) of Directive 2008/95 and Article 9(2) of Regulation No 207/2009, is not exhaustive (see judgments of 12 November 2002, Arsenal Football Club, C‑206/01, EU:C:2002:651, paragraph 38; of 25 January 2007, Adam Opel, C‑48/05, EU:C:2007:55, paragraph 16, and of 23 March 2010, Google France and Google, C‑236/08 to C‑238/08, EU:C:2010:159, paragraph 65), and that it refers exclusively to active behaviour on the part of the third party (see judgment of 3 March 2016, Daimler, C‑179/15, EU:C:2016:134, paragraph 40).
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