INDIA’S FIRST SMELL MARK: A NEW FRONTIER IN TRADEMARK LAW
Authored by Keerthana Krishna
When most people think of a trademark, they imagine a brand name or a logo. However, modern branding goes far beyond words. Today, businesses also protect elements like colours, shapes, sounds, tastes and scents. These are known as unconventional trademarks. However, such marks face several legal and practical challenges, including satisfying the graphical representation requirement, establishing distinctiveness and consumer recognition, overcoming the functionality bar, and the absence of adequate technological mechanisms for their filing and examination. Even after registration, enforcement may be difficult due to the subjective nature of comparing such marks and proving consumer confusion or infringement.
Among these, a smell mark (also known as “olfactory mark”) is a non-conventional trademark in which a particular smell or scent is used to identify and distinguish the goods or services of one undertaking from those of others. India recently witnessed a significant development in this area with the acceptance of its first smell mark.
On 21 November 2025, the Controller General of Patents, Designs and Trade Marks (“CGPDTM”) accepted an application bearing number 5860303 filed by Sumitomo Rubber Industries Ltd. (“Sumitomo case”), a Japanese tyre manufacturer, seeking registration of “FLORAL FRAGRANCE / SMELL REMINISCENT OF ROSES AS APPLIED TO TYRES” in Class 12. Sumitomo had been infusing its tyres with a rose-like fragrance since 1995, a scent with no functional connection to rubber or rubber products, and one it had already registered as a trademark in the UK back in 1996, that country’s first ever smell mark. The Indian application, filed in 2023, became the first instance in Indian trademark history of an olfactory mark clearing registration scrutiny.
The Indian Trademarks Registry, while accepting the application filed by Sumitomo Rubber Industries Limited seeking registration of a smell trademark in respect of its application seeking registration of a trademark for “FLORAL FRAGRANCE / SMELL REMINISCENT OF ROSES AS APPLIED TO TYRES”, adopted a purposive interpretation of the statute to extend the protection to such non-traditional trademarks. Rather than reading “graphical representation” literally as a demand for a drawing or image, the Registry interpreted the provision in light of its underlying purpose: to ensure that the subject matter of protection is defined with enough precision that both the authorities and the public can determine exactly what is being protected. Once the inquiry shifted from “is this a picture?” to “is this representation precise enough to define the mark’s boundaries?”, the door opened to alternative forms of representation.
Sumitomo’s counsel submitted a scientific representation prepared by researchers at IIIT Allahabad. The scent was modelled as a seven-dimensional vector, plotting the rose fragrance across seven fundamental smell families: floral, fruity, woody, nutty, pungent, sweet, and minty, each assigned a numerical weighting, producing something close to a radar chart of the scent’s composition. The Registry accepted this as satisfying Section 2(1)(zb), holding that the representation allowed both the authorities and the public to determine the precise subject matter of protection.
This was reinforced by a second interpretive move: reading Section 2(1)(m), which defines “mark” through an open and inclusive list (device, brand, name, signature, word, shape of goods, combination of colours, “or any combination thereof”), as not foreclosing non-visual signs simply because it does not mention them. Because the definition is inclusive rather than exhaustive, the Registry treated silence on smell as permission rather than prohibition. On distinctiveness, the Registry accepted Sumitomo’s argument that a rose scent bears no natural or functional relationship to tyres, making it an arbitrary and therefore inherently distinctive choice, strengthened by thirty years of consistent commercial use.
At present, this olfactory mark stands opposed by four individuals separately namely, Rishikesh M, Ambareesh R, Karan Singh and Himmatlal Gupta. The Opponents oppose the registration of the impugned mark on the ground that the same is not capable of constituting a trade mark under the Trade Marks Act, 1999, as it lacks inherent distinctiveness and is incapable of distinguishing the Applicant’s goods, particularly when the application was filed on a “proposed to be used” basis and no factual or acquired distinctiveness had been established in India as on the relevant date; further, the impugned mark does not satisfy the statutory requirements under Sections 2(1)(m) and 2(1)(zb) of the Act, as the alleged graphical representation of the claimed olfactory mark is neither clear, precise, self-contained, intelligible, durable nor capable of objectively identifying and defining the precise subject matter of protection, and the use of a seven-dimensional vector or other scientific representation merely seeks to quantify chemical or olfactory characteristics without objectively reproducing the actual sensory mark.
The Opponents further stated that the impugned mark is further liable to refusal under Section 9(2)(a) and other applicable provisions of the Act, being of such nature as may cause confusion and being incapable of functioning as a reliable source identifier. The application is also contrary to the statutory and procedural framework governing non-conventional marks, as the Trade Marks Rules, 2017 provide specific mechanisms for categories such as sound and shape marks but contain no corresponding mechanism for the filing, representation, classification or examination of olfactory marks, thereby rendering the acceptance and examination of the impugned application legally and procedurally unsustainable. The Opponent further submits that the processing, examination and acceptance of the application are vitiated by serious procedural irregularities, including the alleged withdrawal and transfer of the matter between different Registrars without reasoned orders, disregard of earlier examination objections, including objections under Section 9(1)(a), and the alleged absence of a proper statutory mechanism for the manner in which the application was examined and accepted.
It remains to be seen how the matter unfolds at the opposition stage. While it is certainly noteworthy that the Registry has accepted and advertised a smell mark, the matter has now entered the opposition stage and is already facing four oppositions. It will be interesting to see how the Registry addresses the various substantive and procedural issues raised by the Opponents and, ultimately, how this landmark development in the recognition of smell marks progresses.