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The Court of First Instance held that the Second Board of Appeal of the Office had been right to conclude that the three-dimensional marks in question were devoid of any distinctive character, for the following reasons: ‘28 Article 7(1)(b) of Regulation No 40/94 provides that “trade marks which are devoid of any distinctive character” are not to be registered. 29 A mark has distinctive character if it is capable of distinguishing the goods or services in respect of which registration is applied for according to their origin. 30 A mark's distinctiveness must be assessed, firstly, by reference to those goods and services and, secondly, by reference to the way in which the mark is perceived by a targeted public, which is constituted by the consumers of the goods or services. 32 It must further be observed that Article 7(1)(b) of Regulation No 40/94, under which marks which are devoid of any distinctive character are to be refused registration, draws no distinction between different categories of mark. Accordingly, it is not appropriate to apply more stringent criteria or impose stricter requirements when assessing the distinctiveness of three-dimensional marks comprising the shape of the goods themselves, such as those sought in the present case, than are applied or imposed in the case of other categories of mark. 33 However, in order to assess a mark's distinctiveness, it is necessary to take account of all relevant elements linked to the specific circumstances of the case. One such element is the fact that it cannot be excluded that the nature of the mark in respect of which registration is sought might influence the perception which the targeted public will have of the mark. 34 Under Article 7(1)(b) of Regulation No 40/94, moreover, it is sufficient, in order to defeat the absolute ground for refusal, to demonstrate that the mark possesses a minimum degree of distinctiveness. It is therefore necessary to determine — in the context of an a priori examination and without reference to any actual use of the sign within the meaning of Article 7(3) of Regulation No 40/94 — whether the claimed mark will enable the targeted public to distinguish the marked goods or services from those of other undertakings when they come to make a purchasing choice. 35 In assessing a mark's distinctiveness, regard must be had to the presumed expectations of an average consumer who is reasonably well informed and reasonably observant and circumspect (Cases C-342/97 Lloyd Schuhfabrik Meyer [1999] ECR I-3819, paragraph 26, and T-359/99 DKV v OHIM (Eurohealth) [2001] ECR II-1645, paragraph 27). The goods whose shape it has been sought to register as a mark — the present case involves five shapes of torch — are goods for general consumption, and the targeted public must therefore be considered to comprise all consumers. 36 For the purposes of determining whether the five torch shapes in respect of which trade mark registration is sought are capable of acting on the memory of the average consumer as indications of origin, that is to say, in such a way as to differentiate the goods and link them to a particular commercial source, it should first be noted that it is a feature of the shapes that they are cylindrical. A cylinder is a common shape for a torch. In four of the applications filed, the torches' cylindrical shape opens out at the end where the bulb is, while the torch in the fifth application does not, being cylindrical all the way down. The marks in all the applications correspond to shapes commonly used by other torch manufacturers on the market. Rather than enabling the product to be differentiated and linked to a specific commercial source, therefore, the effect of the marks claimed is to give the consumer an indication as to the nature of the product. 37 Next, as regards the features relied on by the applicant in support of its contention that the shapes claimed as marks are inherently capable of distinguishing its goods from those of its competitors, such as their aesthetic qualities and their unusually original design, it is to be observed that such shapes appear, as a result of those features, as variants of a common torch shape rather than as shapes capable of differentiating the goods and indicating, on their own, a given commercial origin. The average consumer is accustomed to seeing shapes similar to those at issue here, in a wide variety of designs. The shapes in respect of which registration has been applied for are not distinguishable from the shapes of the same type of goods commonly found in the trade. It is therefore wrong to claim, as the applicant does, that the special features of the torch shapes in question such as, inter alia, their attractiveness, draw the average consumer's attention to the goods' commercial origin. 39 The possibility that the average consumer might have become accustomed to recognising the applicant's goods by reference to their shape alone cannot render the absolute ground for refusal in Article 7(1)(b) of Regulation No 40/94 inapplicable in this case. If that is how the marks claimed are perceived, that is something that can only be taken into account in the context of the application of Article 7(3) of the regulation, a provision not invoked by the applicant at any point in the proceedings. All the factors relied on by the applicant — referred to at paragraphs 17 to 19, 21 and 22 above — in order to demonstrate the distinctiveness of the marks claimed relate to the possibility of the torches in question having acquired distinctiveness following the use made of them, and cannot therefore be regarded as relevant for the purposes of assessing their inherent distinctiveness under Article 7(1)(b) of Regulation No 40/94. 40 In the light of the foregoing considerations, the three-dimensional marks applied for in the present case, as perceived by an average consumer who is reasonably well informed and reasonably observant and circumspect, are therefore not capable of differentiating the goods or of distinguishing them from those of a different commercial origin. ...’