India's First Ever Olfactory Trademark Paving The Way Ahead

Sumitomo Rubber Industries Ltd.'s rose scented tyres are India's first ever ‘smell mark' of accepted by the Trade Marks Registry in November 2025. With this, the conversation about application and enforcement of non-conventional trademarks opens up. Smell or Olfactory mark is one such unique form of trademarks which is defined by a scent or an odour rather than a logo, phrase, visual or a textual sign. One of the core elements of a smell marks is that this distinctive smell must not be crucial to the product or the brand itself and its functionality. It is a requisite for the smell mark to be represented in a manner that it is described through graphic representation and is also capable of being distinguished from the services and the goods of one brand to another.

Challenges in Perfumes Qualifying for Olfactory Trademarks

The contention surrounding olfactory marks lies in its difficulty in graphic representation. The distinctiveness of a scent can be established through simple description but graphic representation of the same is hard to follow. This fix is conclusive of the fact that the luxury fashion brands like Chanel get refused while registering their perfumes for trademarks due to the connection of its perfume scent to its core functionality and the difficulty in graphic representation. In 1994, the UK Trade Mark Registrar denied Chanel's perfume No.5 as a smell mark despite being distinct in the market back then. The fragrance-based product is directly relevant to the aim, functionality and objective itself. This is the reason why perfumes are rarely ever trademarked.

The result of which can be seen in the influx of affordable dupes and counterfeits of various perfumes from reputed brands. In the landmark case of Sieckmann v. DPMA (2002) laying the foundation of olfactory trademark jurisprudence involving a “methyl cinnamate” scent, it was described as “balsamically fruity with a slight hint of cinnamon” along with its chemical formula, the ECJ refused its registration on the basis of this description and also, set a strict threshold for the same. It was held that for a scent to be registered, it is essential that the scent is graphically represented in a ‘clear, precise, self-contained, easily accessible, intelligible, durable and objective' manner.

Statutory Trademark Requirements for Registration of Smell Marks

Section 2(1)(m) of the Trade Marks Act, 1999 lists down what categories can be considered as ‘marks' but does not mention anything about the explicit exclusion of smell/olfactory marks or any other non-conventional marks like sound or colour marks. It can safely be inferred from the same that there is no bar on registration of such marks as long as it fulfils the mandatory requirements of Section 2(1)(zb). The subject of applicant's trademark application should be capable of (i) ‘being represented graphically', and (ii) ‘distinguishing the goods or services of one person from those of others. To graphically represent a sound mark, it can be done with the help of drawing frequencies. Similarly, to represent colour marks, Pantone Matching System (PMS) can be used to facilitate colour communication for the purpose of specifying and regulating them.

The distinctiveness is an important aspect for the registration of any trademark. Especially when it comes to olfactory marks, a mere description of the scents cannot fulfil this mandatory requirement as it is generic and only descriptive. This is one of the reasons why courts have consistently refused to trademark perfumes as the fragrance introduction is descriptive in form of top, middles and base notes which does not qualify the category of being graphically represented. Another element is the ‘Acquired Distinctiveness' that requires the applicant to showcase that the mark applied has attained distinctiveness over an extended period of time as the smell is not inherently distinct to automatically be seen as the brand identifier and is therefore, is unrelated to the functionality of the brand/product.

Sumitomo Marking a Turning Point in Olfactory Trademarks in India

Successfully accepted as ‘a floral fragrance/smell reminiscent of roses as applied to tyres' in class 12 pertaining to tyres for vehicles, Sumitomo already has their rose scented tyres registered in the UK back in 1996. This was also the first smell mark ever registered in the UK. The representation statement of the scent must be clear, precise, self-contained, easily accessible, intelligible, durable and objective as elaborated by the European Court of Justice in Siekmann v. German Patent and Trademark Office (2002). Sumitomo's description of scent gives the clear and precise information of its identity which is easily recognizable.

With regards to the graphic representation of the rose-scent, Sumitomo presented a 7-dimensional vector model prepared by the inventors of IIIT Allahabad wherein each dimension is defined as one of the 7 essential smells: fruity, floral, woody, pungent, nutty, minty and sweet. Applicant's rose-scented tyres can accurately be represented by the floral section of the submitted graphical representation.

Responding to the application of ‘freshly cut grass' scented tennis balls in Vennootschap Onder Firma Senta Aromatic Marketing v. Markgraaf B.V  (1999), the second board of appeal had said that olfactory marks should not be subjected to “stricter rules” if they have no foundation in law as the trade mark law explicitly does not limit the registration of scent marks. ‘The smell of freshly cut grass is a distinct smell which everyone immediately recognises from experience. For many, the scent or fragrance of freshly cut grass reminds them of spring, or summer, manicured lawns or playing fields, or other such pleasant experiences.' Hence, the board accepted the application for the same and the olfactory mark was registered for tennis balls.

Accepting the graphic representation presented by Sumitomo on the similar lines, the Controller opined that it was detailed and clearly distinguished the elements of the scale and weightage of the scent composition of the scented tyres. Hence, this vector model fully complied with the mandatory requirements of section 2(1)(zb) of the Trade Marks Act 1999. On the question of distinctiveness, any registered mark should not create or contribute to the confusion among the customers.

In Sumitomo's case, this distinctiveness was displayed via the long-term use since 1996 as the consumers have no difficulty in forming an association between the goods (tyres) and the origin of these goods (Sumitomo). This is evident of no direct relevance between the scent of the tyres and the actual function & application of the tyres. The scent leaves a strong impression on the customers as tyres usually do not carry floral scents. This makes this rose scent of the tyres the arbitrary indicator of origin, making it capable of solely being exclusively associated with Sumitomo Rubbers Ltd. and making it distinguishable from the rest of the market. Therefore, the Controller held that Sumitomo's olfactory mark application fulfils both the requirements of Section 2(1)(zb) of Trade Marks Act, 1999: graphical representation and distinctiveness and directed the Registry to advertise and accept this application in the Trademarks Journal.

Conclusion

This order expands the limits for future applicants who seek to register olfactory marks in India. While showcasing the graphical representation, the applicants should provide a model or a diagram that represents and details the fragrance components. It should be precise, objective, clearly comprehensible and more than just a standard description of the scent. It is also essential to establish a strong proof of distinctiveness via a proof of registration, long term use of the smell consistently and its identity as a standalone scent, not functional to the product itself.

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