26Lastly, it must be borne in mind that in Philips the Court has already held that:— if a shape is refused registration pursuant to Article 3(1)(e) of the Directive, it can in no circumstances be registered by virtue of Article 3(3) (paragraph 57);— a sign which is refused registration under Article 3(1)(e) can never acquire a distinctive character for the purposes of Article 3(3) by the use made of it (paragraph 75);— Article 3(1)(e) concerns certain signs which are not such as to constitute trade marks and that it is a preliminary obstacle liable to prevent a sign consisting exclusively of the shape of a product from being registrable with the result that if any one of the criteria listed in Article 3(1)(e) is satisfied, a sign consisting exclusively of the shape of the product cannot be registered as a trade mark (paragraph 76).
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