Odour in Order: How India’s First Smell Trademark Broadens the Scope of Brand Identity

India has taken a significant step towards recognising non-traditional forms of intellectual property with the acceptance of its first olfactory trademark. In a landmark decision, the Trade Marks Registry approved the advertisement of a Japanese company’s application seeking protection for the “floral fragrance or smell reminiscent of roses” as applied to vehicle tyres. The applicant, Sumitomo Rubber Industries Ltd., has incorporated scented technology into its tyres since the mid-1990s, and this development marks India’s entry into the global conversation surrounding sensory branding and trademark law.

The application, filed on March 23, 2023 under Class 12 (tyres for vehicles) according to the Nice Classification (established by the Nice Agreement,1957, is an international classification of goods and services applied for the registration of marks), immediately presented the Registry with an unusual challenge. The Trade Marks Act, 1999 does not explicitly refer to smell or olfactory marks, yet it also does not exclude them. The statutory framework requires that any trademark must be capable of distinguishing goods or services and must be representable graphically.

These requirements, while conceptually straightforward, become complex when applied to a scent. Dr. Unnat P. Pandit, the Controller General of Patents, Designs and Trade Marks, acknowledged that the application belonged to the category of the “rarest” cases and pushed the boundaries of Indian trademark jurisprudence.

Initially, the Registry objected to the application as per Sections 9(1)(a) (Absolute grounds for refusal of registration) and 2(zb) (a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours) of the Act for lacking distinctiveness and not being supported by a graphical representation, which is a mandatory requirement under the Act.

A smell, by its very nature, does not lend itself easily to visual depiction. The applicant responded to the examination report, and given the novelty of the issues involved, the Registry appointed an amicus curiae to assist with scientific, technical and legal aspects. Professors from the Indian Institute of Information Technology, Allahabad subsequently developed a graphical representation that met the legal standard of being clear, intelligible, objective and sufficiently precise to satisfy the statutory mandate.

After reviewing the submissions, the Registry concluded that the scent of roses, when applied to tyres, indeed serves as a distinctive indicator of source. It reasoned that tyres ordinarily emit a strong rubber odour, particularly in the context of highways and other heavily used roadways. A tyre that produces the scent of roses would therefore stand in stark contrast to expected experience and leave a memorable impression on consumers.

The fragrance bears no functional relationship to the nature or characteristics of tyres; rather, its arbitrariness enhances its distinctiveness. The Registry observed that when a vehicle fitted with such tyres passes by, the unusual scent would allow a consumer to immediately associate the experience with a particular manufacturer.

The Registry also recognised that the number of possible smell trademarks is inherently limited, unlike word or visual marks that can take infinite combinations. While this natural scarcity of olfactory marks may result in fewer registrations, such limitations do not justify refusing an application that meets the statutory criteria. In addition, the applicant demonstrated that the same olfactory mark already enjoys protection in the United Kingdom, where it became the first registered smell trademark. The existence of this foreign registration supported the argument that the scent has the capacity to function as a badge of origin.

The acceptance of a graphical representation for a smell mark is, in itself, a meaningful development. Global jurisdictions have grappled with the issue of how to represent scents in a way that is legally enforceable. Chemical formulas, written descriptions and even physical samples have each proven insufficient or unstable. India’s acceptance of a scientifically developed graphical depiction indicates an evolving readiness to adapt traditional trademark requirements to modern commercial practices. It also demonstrates a willingness to bridge the gap between legal mandates and technological possibilities.

This decision carries considerable implications for Indian trademark law and the broader marketplace. By recognising a smell as capable of functioning as a trademark, the Registry has expanded the scope of what constitutes brand identity. Businesses may now consider sensory elements that go beyond visual and auditory cues, particularly in industries such as cosmetics, food, hospitality and luxury goods, where scent has long been intertwined with consumer experience. For consumers, sensory trademarks may enhance product recognition and reduce confusion in markets crowded with similar visual branding.

India now aligns itself with a small but growing group of jurisdictions, including United States of America, Australia and the United Kingdom, that accept olfactory marks within their trademark regimes. Although the European Union remains cautious largely due to difficulties in graphical representation, India’s decision signals a more flexible and progressive approach. It reflects an understanding that modern branding increasingly relies on multi-sensory engagement and that legal frameworks must evolve accordingly.

The acceptance of Sumitomo’s rose-scented tyre mark represents more than a novel legal moment; it signifies a broader shift in how Indian law conceptualises trademarks and consumer perception. It underscores the idea that distinctiveness can arise from any sensory experience capable of connecting a product to its source.

This development expands the horizon of Indian intellectual property law and reaffirms the adaptability of the trademark system in responding to changing commercial realities. Looking ahead, India may even recognise trademarks for unique experiences, such as a signature concert atmosphere, a novel dining experience in a restaurant, or a distinctive amusement park attraction, further broadening the scope of brand identity and consumer engagement.

The author is a final year law student at the O.P. Jindal Global University.

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