Branding By Scent – Landmark Registration Of India's First Smell Mark

Introduction

History has been created! On November 21, 2025, the Controller General of Patents, Designs & Trade Marks ("CGPDTM") accepted India's first ever olfactory trade mark. The landmark development is a result of an ambitious and strategic application filed by the Japanese company Sumitomo Rubber Industries Ltd. to protect the floral fragrance/smell reminiscent of roses as applied to company's tyres.

This article discusses non-conventional trademarks and how scent or smell marks have been treated worldwide, including in India. As India's smell-mark story begins, this article will also examine Sumitomo's application, the legal merits and grounds for acceptance of Sumitomo's subject-matter application.

Non-conventional trade marks

As per the Trade Marks Act, 1999 ("The Act"), a trademark is a distinctive mark capable of graphical representation – that distinguishes the goods or services of one person from those of another.

A single word, a combination of words, slogans, logos, devices, designs, colours, composite marks consisting of work and logo and a combination of either/ all of these are conventionally and traditionally considered trademarks as per the Act. Some trademarks extend beyond these conventional forms and are considered non-traditional trademarks. Non-traditional trademarks may include smell marks, shape marks, motion marks, sound marks, taste marks, or texture marks.

Amongst these, smell marks are scents associated exclusively with a particular product or service – such that it becomes capable of being a source identifier by differentiating goods/ services of one from another.

Registration of smell marks is particularly challenging since a trademark must be graphically represented and demonstrated on paper to be registered. This is practically difficult in the case of scents. Establishing distinctiveness of a scent from other scents in the marketspace is also very difficult. Moreover, a smell is not eligible for trademark registration if the scent to be protected is how the product smells inherently because of its functionality – for instance the smell of perfumes or air freshers cannot be registered since the functionality of the product itself is the smell. Lastly, precisely describing a scent objectively is mostly impracticable since perception of a certain smell depends person to person; and is in most cases not universal.

Global outlook towards Smell Marks

Globally, different jurisdictions showcase different legal approaches towards registrability of smell trademarks.

• Australia: A scent mark can be registered in Australia; however, such registrations are very rare since meeting the threshold to prove distinctiveness and non-functionality and precisely penning down graphical representation is very challenging. Eucalyptus radiata used in relation to golf tees and cinnamon used in relation to a non-wooden furniture are the only two instances of successful scent mark registration in Australia.
• European Union: The standalone registration of a smell mark in the European Union is that of the smell of freshly cut grass used in relation to tennis balls. This registration established the landmark Sieckmann Criteria that requires clarity, precision, durability, and intelligibility in the graphical representation of a smell mark for it to be successfully registered. Interestingly, the Sieckmann's standards still influence examiners while looking at registration of smell mark – even though the requirement of graphical representation of a trademark has been repealed by way of an amendment in 2017.
• United Kingdom: The United Kingdom permits registration of smell marks; however only a few have been successfully registered. The Sieckmann Criteria to assess olfactory marks has also been adopted in the UK. As a result, providing a chemical formula or merely penning down a descriptive phrase or physically submitting a scent sample with the Trade Marks Office does not meet the stringent standard of graphical representation. A floral fragrance reminiscent of roses used in relation to tires – filed by Japan's Sumitomo Rubber Co. and a string smell of bitter beer used in relation to flights for darts are the only examples of registered smell marks in the UK.
• United States of America: Non-functional distinctive scents are considered registrable as trademarks in the US. Scents such as the plumeria blossom scent for sewing thread, bubble-gum scent for shoes, and an earthy, leathery scent for crayons have been successfully registered in United States.

Smell marks in India

The Trade Marks Act, 1999 defines a trade mark as "any sign capable of being represented graphically and capable of distinguishing the goods or services of one person from those of others". The definition of a trademark in India is non-exhaustive and includes different forms of marks – including scent marks as long as they successfully meet the graphical representation and distinctiveness criteria set in the law. Yet, there has not been a single instance of a smell mark being registered in India till date primarily since the Act does not explicitly confirm registrability of smell marks.

Sumitomo's smell mark registration has changed how the Indian Trade Marks Office perceives smell marks. On March 23, 2024, Sumitomo Rubber Industries Ltd filed an application on a "proposed to be used" basis under Application No. 5860303 for "Floral Fragrance/ Smell Reminiscent of Roses as Applied to Tyres". The application was filed with a brief note on the history of this smell as a trademark, i.e., that the smell mark was first filed as an Olfactory smell trademark in UK under no. UK 00002001416 on October 31, 1994.

Sumitomo's application was examined by the Trade Marks Registry and was objected under sections 9(1)(a) and 2(zb) of the Act for lacking distinctiveness and not being supported by a graphical representation. The Registry also raised an objection on the scope of protection sought in the application. Multiple hearings were listed to discuss the responses filed by Sumitomo. The Registry also sought additional clarifications and written submissions and later on appointed Shri Pravin Anand as amicus curiae in the matter – acknowledging the need for impartial assistance and support. During the course of proceedings, the amicus curiae made submissions to assist the Registry, submitted supporting scientific reports in an endeavour to scientifically and objectively establish the distinctiveness of the mark applied for and also submitted a list of 26 trademark registrations granted globally for smell marks in jurisdictions such as Australia, Costa Rica, European Union, United Kingdom and United States of America.

Sumitomo's key arguments seeking registration of the Smell mark were as follows:

1. Statutory interpretation of "mark" in India: Sumitomo relied on the statutory interpretation of the term "mark" per the Act – which does not exclude smell marks per se.
2. Inherent Distinctiveness: Sumitomo argued that there is no co-relation between the instant mark and the goods in respect of which the instant mark is being applied and thus, the mark is arbitrary in nature. Sumitomo also argued that the fragrance of roses being affixed on tires has no functionality and is not a natural connection. Therefore, consumers encountering a tyre with a rose-scent would immediately and exclusively associate the tyre with them.
3. Acquired Distinctiveness: Sumitomo also submitted that it has infused tyres with the rose-like fragrance since 1995, showing long usage and branding intent. Sumitomo claimed that the mark has successfully acquired distinctiveness through their unique innovation of infusing a floral fragrance, specifically one reminiscent of roses, into the tires manufactured by them. Sumitomo claimed investing significantly in research and development, pioneering the incorporation of scents into their tires, creating a distinct and memorable sensory experience for consumers. As a result, their tires with a floral rose-like scent have become a symbol of quality, innovation, and a refreshing driving experience, making them stand out in the highly competitive tire industry. Sumitomo submitted that the instant smell trademark is associated exclusively with them and the same has acquired formidable reputation and unparalleled distinctiveness.
4. Standard of Graphical representation: Sumitomo submitted two representations of the smell to reassure the Registry's concerns over graphical representation of the smell. Sumitomo submitted a verbal description of the smell as a "Floral Fragrance/Smell Reminiscent of Roses", and also submitted a scientific representation developed by scientists at Indian Institute of Information Technology, Allahabad termed as the "seven-dimensional olfactory vector".
5. Criteria for a Scent mark registration: Sumitomo argued that its representation of the applied smell trademark is clear, precise, self-contained, a smell easily accessible by consumers, intelligible in nature by the relevant and in fact, the major section of the public in India, durable and capable to exist for a long time without significant deterioration in quality or value, and objective such that no two persons are likely to identify or describe the smell of roses in a different manner.

Consequently, on November 21, 2025, the Controller General of Patents, Designs & Trade Marks ordered that the mark be advertised as an "olfactory trademark" (smell mark) on a "proposed to be used" basis. It was held that the smell trademark is question satisfies the criteria laid down for registration under the Trade Marks Act, 1999, as it is clear, precise, self-contained, intelligible, objective and is represented graphically.

Conclusion

The acceptance of India's first smell trademark is a pivotal moment in the evolution of trade mark jurisprudence in the country. Once a theoretical possibility, statutory protection of smell marks in India is now becoming an operational reality.

From a brand owner's perspective, the historic registration of Sumitomo's smell trademark presents a novel avenue of distinguishing one's goods and services from others – basis the smell of their products and even services! As more players would enter the smell trademark category, the real test will lie in enforcement of these rights and how one would exercise exclusivity of their rights in their smell trademark.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.