46However, Article 2 and Article 3(1)(b) and (3) of Directive 2008/95 make no distinction between different categories of trade marks. The criteria for assessing the distinctive character of contourless colour marks, such as the mark at issue in the main proceedings, including whether that mark has acquired a distinctive character following the use which has been made of it, are thus no different from those to be applied to other categories of trade mark (see, by analogy, Philips EU:C:2002:377, paragraph 48, and Nichols EU:C:2004:538, paragraphs 24 and 25).
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