Olfactory (Smell) Trademarks in India: Expanding the Contours of Non-Conventional Marks under the Trade Marks Act, 1999

Introduction

Trademark law has traditionally revolved around visually perceptible identifiers such as words, logos, labels, and devices. However, with the evolution of branding strategies and consumer perception, modern trademark jurisprudence has increasingly recognised non-conventional trademarks, including sound, colour, shape, and, most controversially, olfactory (smell) marks. While Indian trademark law does not expressly exclude olfactory marks, their registration has remained largely theoretical due to practical and doctrinal challenges.

In November 2025, a significant development occurred when the Indian Trade Marks Registry accepted Sumitomo Rubber Industries Ltd.’s rose-scented tyres as a registrable olfactory mark. This marks the first acceptance of a smell trademark in India, signalling a paradigmatic shift in the Indian intellectual property regime. The decision not only aligns Indian practice with select international precedents but also clarifies the applicability of statutory requirements to non-visual marks.

Conceptual Framework of Olfactory Trademarks

An olfactory trademark is a sign that identifies the commercial origin of goods or services through a distinctive scent or fragrance. Unlike conventional trademarks, olfactory marks rely on the human sense of smell to trigger brand association. Their registrability hinges on whether a scent can function as a source identifier, independent of the product’s intrinsic characteristics.

A fundamental principle governing olfactory trademarks is the functionality doctrine. A scent cannot be monopolised if it is essential to the nature, purpose, or technical function of the product. Consequently, fragrance-based goods such as perfumes rarely qualify for trademark protection, as the scent constitutes the very essence of the product rather than an indicator of origin.

Statutory Position under the Trade Marks Act, 1999

The Trade Marks Act, 1999 adopts a technology-neutral definition of trademarks. Section 2(1)(m) defines a “mark” to include “device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours.” Although smell marks are not expressly mentioned, they are not excluded.

The operative provision for registrability is Section 2(1)(zb), which mandates that a trademark must be:

1. Capable of being represented graphically, and
2. Capable of distinguishing the goods or services of one person from those of others.

Thus, the statutory framework permits olfactory trademarks in principle, subject to satisfaction of these two cumulative requirements.

Challenges in Registering Olfactory Marks

1. Graphical Representation

The most persistent obstacle to olfactory trademarks is the requirement of graphical representation. Smells are inherently intangible and subjective, making their precise and objective depiction difficult. Mere verbal descriptions, chemical formulas, or scent samples have traditionally been deemed insufficient.

The European Court of Justice, in Sieckmann v. Deutsches Patent- und Markenamt (2002), laid down stringent criteria, holding that a smell must be represented in a manner that is clear, precise, self-contained, easily accessible, intelligible, durable, and objective. The Court rejected a combination of a chemical formula, a written description, and a scent sample, setting a high threshold that has influenced global trademark practice.

2. Distinctiveness and Functionality

Distinctiveness poses an additional challenge. Olfactory marks are rarely inherently distinctive and often require proof of acquired distinctiveness through long-term and exclusive use. Moreover, if the scent is directly linked to the product’s function or consumer expectation, such as fragrances in perfumes, it is likely to be refused registration.

This explains the consistent refusal of trademark protection to iconic perfumes, including the well-known refusal of Chanel No. 5 by the UK Trade Marks Registry in 1994.

International Jurisprudence on Olfactory Marks

Despite these challenges, certain jurisdictions have recognised olfactory marks under specific circumstances. A notable example is Vennootschap Onder Firma Senta Aromatic Marketing v. Markgraaf B.V. (1999), where the Second Board of Appeal of OHIM accepted “the smell of freshly cut grass” as a trademark for tennis balls. The Board reasoned that the scent was distinctive, non-functional, and immediately recognisable, and that olfactory marks should not be subjected to stricter standards in the absence of an explicit legal prohibition.

Sumitomo Rubber Industries Ltd.: A Turning Point in India

The acceptance of Sumitomo Rubber Industries Ltd.’s rose-scented tyres represents a watershed moment in Indian trademark jurisprudence. The mark was described as “a floral fragrance/smell reminiscent of roses as applied to tyres” in Class 12, covering vehicle tyres.

Graphical Representation through Scientific Modelling

In a significant departure from traditional representations, Sumitomo submitted a seven-dimensional vector model, developed by researchers at IIIT Allahabad. Each dimension corresponded to a fundamental olfactory category—fruity, floral, woody, pungent, nutty, minty, and sweet. The rose scent was objectively plotted within the floral dimension, thereby meeting the Sieckmann criteria for clarity, precision, durability, and objectivity.

The Controller of Trade Marks accepted this model as a valid form of graphical representation under Section 2(1)(zb).

Distinctiveness and Non-Functionality

The distinctiveness of the mark was established through:

• Continuous and consistent use since 1996,
• Prior registration of the same scent mark in the United Kingdom,
• Clear consumer association between the rose scent and Sumitomo’s tyres.

Importantly, the scent bore no functional relationship to the performance or utility of tyres. Given that tyres conventionally emit a rubber smell, the presence of a floral fragrance was deemed arbitrary and capable of acting as a standalone indicator of origin.

Accordingly, the Controller held that the mark satisfied both statutory requirements and directed its advertisement and acceptance in the Trade Marks Journal.

Implications for Indian Trademark Law

The Sumitomo decision substantially expands the scope of protectable subject matter under Indian trademark law. It demonstrates the Registry’s willingness to:

• Accept innovative scientific representations of non-visual marks,
• Apply statutory requirements flexibly without diluting legal standards,
• Encourage brand innovation while respecting the functionality doctrine.

However, the decision does not open the floodgates indiscriminately. Applicants seeking registration of olfactory marks must still demonstrate:

• Objective and precise graphical representation,
• Strong evidence of acquired distinctiveness,
• Absence of any functional nexus between the scent and the product.

Conclusion

The recognition of olfactory trademarks in India marks a progressive evolution in the country’s intellectual property regime. By accepting Sumitomo’s rose-scented tyres, the Trade Marks Registry has reaffirmed that trademark law must adapt to modern branding realities while remaining anchored in statutory discipline. Future applicants must navigate a high evidentiary threshold, but the path for protection of non-conventional trademarks in India is now firmly established.

Citation:

• Sieckmann v. DPMA, Case C-273/00 (ECJ, 2002)
• Senta Aromatic Marketing v. Markgraaf BV, R 156/1998-2 (OHIM, 1999)
• Sumitomo Rubber Industries Ltd., TM Registry Order (India, 2025)