India's First Smell Trademark: Legal Implications And Future Trends In IP Protection

India has recently taken a significant step in expanding the scope of trademark protection in India with the acceptance of its first smell trademark. The Indian Trade Marks Registry has accepted for advertising a trademark application seeking protection for a rose fragrance applied to tyres, a critical development that signals India's willingness to recognise non-traditional marks as legitimate indicators of commercial origin. As global branding increasingly incorporates sensory elements, this move also aligns India with international practices that protect not only visual marks but also olfactory, auditory, and other sensory identifiers.

The recent trademark application was filed by Sumitomo Rubber Industries Ltd. on 23 March 2023, seeking registration of a trademark for the "Floral Fragrance/Smell Reminiscent of Roses as Applied to Tyres" in Class 12. Under the Nice Classification system, which India follows for trademark registration, goods and services are organized into 45 internationally recognised classes from Classes 1 to 34 for goods and Classes 35 to 45 for services. Class 12 specifically includes vehicles and apparatus for locomotion by land, air, or water, as well as their parts and accessories. Tyres fall squarely within this class, making it the appropriate classification for the rose-scented tyre mark.

The Controller General of Patents, Designs and Trade Marks (CGPDTM) accepted the application for advertisement on 21 November 2025¹, marking a key milestone. Acceptance at this stage indicates that the Registry found the scent capable of being represented and prima facie distinctive based on two indicators that have traditionally posed challenges for non-visual trademarks, particularly smell marks, due to the difficulty of graphical representation and establishing unique association.

This development marks a meaningful shift in India's current intellectual property landscape. It underscores the growing relevance of sensory branding and highlights the evolving evidentiary and legal considerations involved in establishing distinctiveness and non-functionality for non-traditional marks. As India begins to engage more deeply with the complexities of sensory trademarks, the acceptance of this application may serve as a significant precedent, one that shapes both administrative practice and judicial interpretation in the coming years.

The Rise of Non-Traditional Trademarks

Trademark law has traditionally focused on visual marks, such as logos, words, and symbols, which are tangible and can be graphically represented. However, with the growing significance of intellectual property in India and as brands seek innovative ways to differentiate their products, sensory elements like smell, sound, and texture have emerged as powerful tools in branding. These non-traditional trademarks present unique challenges for the legal system, particularly because they cannot be represented graphically in the same manner as visual marks.

The absence of explicit statutory recognition of smell marks in the Trade Marks Act, 1999 had previously created uncertainty regarding their registrability. Internationally, this challenge has been examined extensively, most notably in the EU's Sieckmann judgment². In that case, the applicant sought to register the chemical substance methyl cinnamate, described as a 'balsamically fruity with a slight hint of cinnamon,' as a trade mark. The Court of Justice of the European Union clarified that while non-visual signs can in principle be registered, they must satisfy the requirement of being represented graphically in a full, clear and precise way which is comprehensible to manufacturers and consumers generally.

In Sieckmann judgment, the Applicant submitted a chemical formula, a verbal description of the scent, and physical samples, but the Court found that none of these methods met the strict criteria, particularly because a mere scent sample was nor durable neither self-contained, and the verbal description lacked sufficient precision. However, with the rejection of that smell as a trademark, this ruling established the Sieckmann criteria, which remain a benchmark for assessing the registrability of sensory marks in Europe. For India, where the Trade Marks Act, 1999 does not explicitly include non-traditional marks, the judgment provides a valuable reference, demonstrating the need for objective, reproducible, and intelligible representations. It also highlights the evidentiary and practical challenges that the Indian Judiciary shall navigate while dealing with disputes pertaining to the registration of smell marks within the current intellectual property regime, including proving distinctiveness and representability.

Among non-traditional marks, smell has gathered particular attention as an effective brand differentiator. It is emotionally evocative, creating a compelling sensory experience that enhances consumer recall and reinforces brand identity. Nonetheless, registering and protecting smell marks continues to present significant hurdles, especially in proving that a particular scent is distinctive and is capable of commercially representing a specific product/service. The case of the rose-scented tyre exemplifies this evolution in trademark law, signalling that India is increasingly open to recognising and protecting sensory elements as legitimate indicators of commercial origin.

The Rose-Scented Tyre: Legal Reasoning and Regulatory Framework

The landmark application was filed by Sumitomo Rubber Industries Ltd. of Japan, seeking registration of the rose fragrance of its tyres as a trademark. The company contended that the scent had become a distinctive feature of the product and was strongly associated with the brand in the minds of consumers. To substantiate this claim, the applicant provided extensive evidence, including consumer surveys and market research, demonstrating that the fragrance served as a clear indicator of origin.

The application initially faced objections under Section 9(1)(a) of the Trade Marks Act, 1999, on the grounds of lack of inherent distinctiveness, and under Section 2(1)(zb) due to challenges in the graphical representation of smell marks. To overcome these objections, the applicant submitted a scientifically developed seven-dimensional "olfactory vector", created by researchers at the Indian Institute of Information Technology (IIIT), Allahabad. This vector captured the rose fragrance through its volatile organic compound (VOC) composition across seven sensory axes, providing a method of representation that was objective, reproducible, and precise. The CGPDTM accepted this scientific representation sufficient to meet the graphical representation requirement, a significant development given that graphical depiction has historically been a barrier to registering olfactory marks worldwide as well as in India.

At the core of the case was the requirement for distinctiveness and non-functionality under the Trade Marks Act, 1999. A valid trademark must distinguish the goods or services of one enterprise from another and cannot be purely functional or incidental to the product itself. The Registry concluded that the rose fragrance served an aesthetic and branding purpose, rather than any functional aspect of the tyre, thereby fulfilling the statutory criteria. Based on this evidence, the mark was accepted for advertisement, representing a notable expansion in India's recognition of smell as a valid trademark.

The case also underscores the evolving approach of Indian trademark law in accommodating non-traditional marks. Under Section 2(1)(zb), a trademark is broadly defined as any mark capable of distinguishing goods or services, which encompasses smells, tastes, and textures. Section 9 further reinforces that a trademark must not be descriptive or functional, while Section 11 addresses relative grounds for refusal, preventing conflicts with pre-existing marks. The CGPDTM's acceptance of the olfactory vector highlights a dynamic adaptation of these provisions to modern branding techniques, highlighting India's willingness to integrate scientific methods to meet the long-standing requirement of graphical representation, a principle also shaped by global precedents such as the EU Sieckmann judgment.

This decision sets a potential precedent for future olfactory trademark applications in India, indicating that scientifically supported representations of sensory marks can meet legal requirements. It marks a step forward in aligning India with international practices while simultaneously addressing the practical challenges of registering and protecting non-visual trademarks in the Indian context.

Challenges in Registering Smell Marks

While the granting of the rose-scented tire trademark represents a breakthrough, significant challenges remain intact. Demonstrating distinctiveness is one of the main hurdles. Smells cannot be easily represented graphically, making it difficult to show a direct association between the scent and the brand. In this case, the applicant relied on exhaustive surveys, market studies, and chemical analysis to establish distinctiveness.

Proving non-functionality is another challenge. A smell mark cannot be registered if the scent serves a practical purpose. The applicant demonstrated that the rose fragrance did not affect the tire's performance but served solely as a branding tool or aesthetic. In addition to this, enforcement of smell marks also presents difficulties. Since smells are invisible and subjective, proving infringement would likely require chemical fingerprinting, scientific VOC analysis, and expert testimony and involvement. This introduces a technical dimension to enforcement and may raise costs for litigation involving sensory marks. The case also provides that future applicants may increasingly rely on technical and scientific evidence to secure protection and enforceability.

Global Trends in Sensory Trademarks

The recognition of a rose-scented tyre trademark in India places the country among jurisdictions that protect non-traditional marks, including scents, when they function as clear indicators of commercial origin. In the European Union, one of the few first accepted olfactory trademark is the "smell of freshly cut grass" for tennis balls, registered under EUTM No. 000428870 by the former Office for Harmonization in the Internal Market (OHIM)³. Other scent applications have largely been unsuccessful. Notably, the General Court rejected an application to register the smell of ripe strawberries in Case T-305/04, holding that the scent description lacked the required clarity and precision⁴. In Sieckmann (C-273/00), the Court of Justice of the European Union established stringent criteria for the representation of scent marks, further limiting their registrability.

In the United States, several olfactory trademarks have been successfully registered when applicants demonstrated that the scent served solely as a source identifier and was non-functional. A prominent example is the Play-Doh scent⁵, registered in 2018 (Reg. No. 5467089). The USPTO has also registered other scent marks, including the "flowery musk"⁶ scent for Verizon stores (Reg. No. 4144511) and the "cherry"⁷

These examples illustrate that while scent trademarks remain rare, several jurisdictions recognise them when applicants satisfy statutory requirements related to distinctiveness, representation, and non-functionality.

Implications for the Future of Trademark Law in India

India's first smell trademark is a turning point in the evolution of governing regulatory regime. As businesses increasingly adopt sensory branding, demand for protection of non-traditional marks is likely to grow. Intellectual Property professionals will need to develop strategies for proving distinctiveness and non-functionality, while also understanding how scientific representation can support registration and enforcement. As the mark enters advertisement and potential opposition stages, it will test how Indian Authorities interpret similarity, confusion, and enforceability for sensory marks, potentially shaping the trajectory of non-traditional trademark protection in India.

By accepting a scientifically mapped rose fragrance as a valid trademark, the Registry has opened the door for businesses to protect the unique sensory experiences that define their products. This decision can serve as a precedent for future cases, guiding how non-traditional marks like smells, tastes, or textures are evaluated, represented, and enforced. For Indian market, it signals that innovation and creativity in sensory branding can now be safeguarded. However, for legal professionals, it highlights the exciting challenges and opportunities that come with navigating this new adaptation. In short, this distinctive acceptance doesn't just expand the law, and sets the stage for India to lead in protecting sensory trademarks.

Footnotes

1 MINISTRY OF COMMERCE & INDUSTRY, Trade Marks Registry, Order dated 21.11.2025, https://images.assettype.com/barandbench-kannada/2025-11-23/67nte5oz/Smell_mark_Order.pdf

2 Ralf Sieckmann v Deutsches Patent- und Markenamt, Case C-273/00, https://curia.europa.eu/juris/document/document.jsf;jsessionid=8F0E86D6D74DCF18CA330F096D033F6D?text=&docid=46822&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first∂=1&cid=13365315

3 Decision of the Second Board of Appeal of 11 February 1999 in Case R 156/1998-2, Community trade mark application No 428870, https://www.copat.de/download/R0156_1998-2.pdf

4 Eden SARL v. OHIM, Case T-305/04, General Court (2005)

5 USPTO Reg. No. 5467089 (2018), https://newsroom.hasbro.com/node/28491/pdf

6 USPTO Reg. No. 4144511

7 USPTO Reg. No. 4736683

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