Trademarks have traditionally been understood as something the public can see, which traditionally means a name, a logo, a label, or a symbol placed on goods and services. However, modern branding has moved far beyond the visual. Today, brands are increasingly recognised by sound, shape, touch, and even scent. In a significant development for Indian trademark law, the Trade Marks Registry has now taken a decisive step toward recognising this shift by accepting India’s first ever application for a smell mark.
In an order dated November 21, 2025, the Trade Marks Registry (Delhi) dealt with an unusually rare and boundary-pushing trademark application filed by Sumitomo Rubber Industries Ltd., Japan, seeking registration of a mark described as “FLORAL FRAGRANCE / SMELL REMINISCENT OF ROSES AS APPLIED TO TYRES” in Class 12 (tyres for vehicles). The Registry acknowledged that the matter challenges conventional approaches in trademark law and marks a first-of-its-kind attempt to secure statutory protection for an olfactory mark in India.
CAN A SMELL BE A TRADEMARK UNDER INDIAN LAW?
Indian trademark law does not explicitly mention smell marks. So, the big question is, can this kind of mark actually work within the rules we have? The Registry looked at what a “mark” means in the Trade Marks Act, 1999, and noted that Section 2(1)(m) states that. ““mark” includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof.” Thus, even though “smell” isn’t explicitly included, the Registry was of the opinion that the definition in Section 2(1)(m) is broad enough to include olfactory marks.
OBJECTIONS RAISED BY THE REGISTRY:
The legal question really came down to whether the smell mark met the two absolute must-haves in Section 2(1)(zb): (i) the mark capable of being represented graphically? (ii) is it capable of distinguishing the goods or services of one person from those of others?
These issues speak to a common issue seen globally for smell marks. The challenge arises because fragrance is a temporary sensory experience. In contrast, trademark law requires something stable, objective, and capable of being recorded with clarity.
SUMITOMO’S RESPONSE:
To overcome the objections, Sumitomo argued that the smell of roses is widely recognised and easily understood by the public, and therefore a clear word description such as “floral fragrance/smell reminiscent of roses” should be considered sufficient for representation. The applicant compared it with familiar scents like freshly cut grass or the smell of soil after rain (petrichor), which can be understood without requiring a technical description. According to the applicant, the difficulty only truly arises when the scent is vague or complex, such as an abstract perfume composition.
On distinctiveness, the applicant’s position was even stronger. It stated that rose fragrance has no natural connection with tyres and does not serve any functional purpose. It is therefore arbitrary when applied to tyres and is capable of operating as a source identifier. The applicant also emphasised that it has incorporated this rose fragrance into its tyres as part of product development and brand strategy since 1995, thereby supporting a claim of acquired market association.
APPOINTMENT OF AN AMICUS CURIAE:
Recognising the novelty and complexity involved, the Registry appointed an amicus curiae, acknowledging the need for impartial expert assistance. The amicus supported the view that smell marks can be registrable if they satisfy the twin requirements of graphical representation and distinctiveness.
The most important contribution in the matter came from a technological methodology developed at the Indian Institute of Information Technology (IIIT), Allahabad. The amicus placed on record a scientific report and a novel graphical representation of the rose-like smell, prepared by experts at IIIT Allahabad.
Instead of attempting an impossible task of visually drawing a scent, the IIIT innovators represented the fragrance as a vector in a seven-dimensional space, where each dimension corresponds to one of seven fundamental smells: floral, fruity, woody, nutty, pungent, sweet and minty. The representation was accompanied with an explanatory description describing the scent as a mixture of volatile organic compounds interacting with olfactory receptors to create the rose-like smell.
This method offers what trademark law truly demands: an objective “boundary” that defines what the applicant is claiming ownership over. The radar-style diagram provided visually demonstrates the strength distribution of the smell profile across these dimensions.
THE REGISTRY’S FINDING:
After considering the applicant’s submissions and the amicus’ scientific and legal inputs, the Registry concluded that the representation on record was detailed, scientifically structured, and capable of enabling the public and authorities to determine the precise subject matter of protection. It held that the 7D vector approach sufficiently captures the “metes and bounds” of the smell, and therefore satisfies the mandatory requirement under Section 2(1)(zb).
On distinctiveness, the Registry adopted a practical consumer-focused approach. It observed that if a vehicle fitted with such tyres passes by, a consumer perceiving the fragrance would be able to form a strong association between the product and the source. The experience would stand out sharply against what consumers typically expect, namely, the ordinary smell of rubber on highways or roads. Since the rose fragrance has no relationship with the nature, use, or characteristics of tyres, the Registry held that the mark is arbitrary in this context and therefore distinctive.
DECISION:
Ultimately, the Registry accepted the application and directed that it be advertised under Section 20 of the Trade Marks Act, 1999 as an “olfactory mark”, along with the scientific representation and description submitted on record.
WHAT THIS MEANS FOR BRAND OWNERS:
If your brand uses a distinctive fragrance (for products or packaging), this may be the right time to consider applying for smell-mark protection in India. If your brand satisfies the requirements below, pursuing this additional layer of protection could strengthen your trademark portfolio:
- Clear description of the scent – A precise description of the scent.
- Distinctive feature – The scent should be unique and capable of identifying the brand among other similar products in the market.
- Non-descriptive & Non-Functional – The scent should not naturally arise from the goods or be for any functional purpose.
- Graphically representable – Currently, vector-based representation comprising the extent and nature of the various components involved in the scent is accepted. Any other means of graphical representation aptly representing the scent would also be sufficient.
- Use of the mark – Although use of a smell mark cannot be proved merely through advertising material or invoices alone, it is possible to establish use through other additional materials such as customer reviews mentioning the scent, documents involving manufacturing process mentioning the scent, etc.
This decision is not just about tires or fragrance. It is about how Indian trademark law responds when branding moves into newer territories. The Registry acknowledged that unconventional marks like smell cannot be treated exactly like conventional trademarks, yet reaffirmed that the statutory framework can still accommodate them (provided the mark is represented objectively and proves its ability to distinguish).
By accepting a scientific and technically defined representation, the Registry has shown that Indian IP systems are capable of adapting to innovation without diluting the core principles of trademark law. For businesses that are investing in sensory branding, this is a strong indication that the legal regime is catching up with commercial reality and that smell marks may no longer remain outside the scope of enforceable trademark protection in India.