In the context of the examination of distinctiveness, it is irrelevant whether a sign is generally capable of being a trademark^[1] within the meaning of Art. 3 TMD, Art. 4 EUTMR or Secs. 3 I, 8 I MarkenG. It does not follow from the general trademark capacity that this sign also necessarily has (concrete) distinctiveness with regard to very specific products within the meaning of Art. 4 I lit. b TMD, Art. 7 I lit. b EUTMR or § 8 II no. 1 MarkenG.^[2] The examination of the (abstract) capability of distinguishing within the scope of trademark capacity is subject to different criteria than the concrete capability, provided that one still wants to pay attention to the unhelpful distinction between abstract and concrete distinctiveness at all.^[3]
For example, the abstract colour orange is indeed capable of being a trademark and thus has abstract distinctiveness. However, this does not automatically mean that it also has concrete distinctiveness with regard to the products for which protection is sought.^[4]