26As for the effect of the classification of a sign as a ‘colour mark’ or ‘figurative mark’ on the assessment of distinctive character, it must be held that when a competent authority examines a trade mark application, it must, in order to determine whether the sign in respect of which protection is sought under trade mark law has distinctive character within the meaning of Article 3(1)(b) of Directive 2008/95, carry out an examination by reference to the actual situation, taking account of all the circumstances of the case and in particular any use which has been made of the sign (see, to that effect, judgments of 6 May 2003, Libertel, C‑104/01, EU:C:2003:244, paragraph 76; of 12 February 2004, Koninklijke KPN Nederland, C‑363/99, EU:C:2004:86, paragraphs 31 to 35; and of 24 June 2004, Heidelberger Bauchemie, C‑49/02, EU:C:2004:384, paragraph 41).
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