India’s First Smell Mark: A Landmark Shift in Non-Traditional Trademark Jurisprudence and What It Means for Future Applicants

Introduction

India has reached a historic milestone in the evolution of its intellectual property regime with the Trade Marks Registry accepting the country’s first olfactory (smell) trademark a floral, rose-like fragrance applied to vehicle tyres filed by Sumitomo Rubber Industries Ltd. (Application No. 5860303). This unprecedented decision expands the scope of what can constitute a “mark” under the Trade Marks Act, 1999, and sets a clear legal pathway for non-traditional trademarks in India.

Background: A Unique and Legally Complex Application

The application sought protection for “FLORAL FRAGRANCE / SMELL REMINISCENT OF ROSES AS APPLIED TO TYRES”, a category never previously granted registration in India. During examination, the Trade Marks Registry raised two core objections:

1. lack of graphical representation, a statutory requirement under Section 2(1)(zb), and
2. lack of distinctiveness under Section 9(1)(a).

The applicant responded by producing scientific evidence, comparative international jurisprudence, and a cutting-edge scent-representation model.

The Breakthrough: A Graphical Representation of Smell

The hallmark challenge was demonstrating that a smell can be “represented graphically” as required under Section 2(1)(zb). Traditional marks like words, devices, logos are easily depicted. Olfactory marks are fundamentally non-visual.

To address this, experts from IIIT Allahabad created a 7-dimensional vector representation mapping the smell across seven fundamental scent families: floral, fruity, woody, nutty, pungent, sweet, and minty.

The Controller held that this graphical representation is:

• precise, intelligible, objective, self-contained,
• capable of defining the boundaries of the mark, and
• adequate for both public understanding and Registry assessment.
• Thus, the statutory requirement of graphical representation was satisfied.

Distinctiveness: The Rose Scent as an Arbitrary Indicator of Origin

The Controller held that the smell of roses applied to tyres is arbitrary, lacks functional connection, and is capable of distinguishing the applicant’s goods from others. Key findings include:

• Consumers would not expect tyres to carry a floral scent—thus, the mark clearly stands out.
• The rose smell is universally recognised and stable across populations.
• When a vehicle fitted with such tyres passes, the smell allows consumers to associate the product with a single source.
• The scent has been registered abroad, supporting distinctiveness.
• Therefore, the rose-like smell was held to be inherently distinctive.

How the Trade Marks Office Examined and Decided the Application

The order provides valuable insight into how the Registry evaluates non-traditional marks, especially sensory marks for which no prior Indian precedent exists.

(A) Step 1: Determining Whether the Mark Is Capable of Graphical Representation

The Registry examines whether the representation:

1. Clearly defines the smell without ambiguity
2. Is objective and scientifically grounded
3. Can be consistently interpreted by examiners and the public
4. Does not rely merely on subjective description

In this case, the seven-dimensional vector satisfied these requirements. The Controller emphasized that innovative methods if clear, precise, and intelligible can meet the statutory threshold, even if unconventional.

(B) Step 2: Determining Distinctiveness

The Registry applied the same principles used for other marks:

1. Is the smell inherently distinctive?

A rose smell on tyres has no logical or functional connection → inherently distinctive.

2. Is the smell capable of identifying commercial origin?

Yes. The contrast between rubber odour and floral fragrance creates a strong source association.

3. Is there risk of consumer confusion?

No, because the smell is clear and universally understood, leaving no ambiguity.

The Registry also applied the “Man of Average Intelligence and Imperfect Recollection” test.

(C) Step 3: Ensuring the Mark Is Not Functional

A smell cannot be registered if:

• it naturally arises from the product, or
• it provides a functional benefit (e.g., masking toxicity, enhancing performance).
• The rose scent applied to tyres serves only a branding function, not a functional or technical one, thus meeting the non-functionality requirement.

(D) Step 4: Considering International Precedents

The Registry analysed smell-mark decisions from:

• the UK (where this same scent was registered),
• Australia,
• the United States,
• the EU (e.g., the fresh cut grass case).

This comparative analysis helped the Registry align the decision with global best practices.

How Applicants Can Prove a Smell Mark: Evidentiary Requirements

This order offers a roadmap for future applicants wishing to register olfactory marks in India.

(A) A Clear and Scientifically Grounded Graphical Representation

Applicants must provide:

• a scientific model or diagram representing fragrance components;
• a method that is objective, reproducible, and publicly comprehensible;
• evidence explaining how the graphical model captures the smell.

Simple text descriptions are unlikely to suffice unless the smell is universally and uniquely identifiable (e.g., fresh grass).

(B) Proof of Distinctiveness

Applicants should submit:

• Consumer surveys (if available)
• Evidence of long-term use of the smell
• Advertising material emphasizing the scent
• Sales data linking scent to origin
• Proof of registration in foreign jurisdictions
• Media articles and third-party recognition

Sumitomo provided extensive proof of acquired and inherent distinctiveness, supported by international registrations and press coverage.

(C) Evidence That the Scent Is Not Functional

Applicants must show:

• The smell is not inherent to the goods
• The scent does not provide a technical or utilitarian advantage
• The smell exists purely for brand identification

This is crucial: functional features are never registrable.

The Decision: A Landmark Acceptance

The Controller held that the smell mark fulfills the requirements of:

• graphical representation, and
• distinctiveness

and directed the Registry to accept and advertise the application as an “olfactory trademark.”

Significance for Indian Trademark Jurisprudence

This decision has far-reaching implications:

A. India now officially recognises non-conventional marks: paving the way for scent, taste, texture, colour per se, motion, and hologram marks.

B. Scientific evidence becomes central to TM examination: for sensory marks where visual reproduction is impossible.

C. The Trade Marks Registry adopts a modern, innovation-friendly approach: mirroring global IP trends.

D. Brands in luxury goods, automotive, food and fragrance industries: may now confidently pursue protection for sensory branding.

Conclusion

India’s first recognised smell mark is a milestone that reshapes the contours of trademark protection. By embracing scientific graphical representation and applying a modern test for distinctiveness, the Trademark Office has demonstrated both legal sophistication and technological adaptability. For brand owners, this opens entirely new avenues of sensory branding and IP protection, ushering India into the global vanguard of non-traditional trademark recognition.