The European Authorities agreed that the handles could indeed not be protected as a trademark. The European Court of First Instance, judging on this matter in appeal, decides differently, however. The fact that the trademark was filed as a figurative mark and not as a shape mark does not matter. What matters is that the image in the application, as applied for, and not the actual characteristics of the knife. In the image only black dots van be seen, the fact that there are indentations in real life is invisible.
The Court rules that OHIM erroneously assumed that this is an anti-slip structure, since it is not possible to determine that the holes are indentations on the basis of the application. There is also no further description where it states this. The trademarks are therefore deemed valid. Apparently it seems that it may sometimes be wise to use a stylized image instead of a photo when trying to protect a certain shape.
Note: Several court cases will follow. In the end the European Court of First Instance decides May 21, 2015 that the design right is not valid. The shape is purely technical. The sign consists exclusively of the shape that is essential for a technical solution (an anti-slip result).
