India’s First Smell Trademark: A Landmark Step In Non-Traditional Trademark Protection

INTRODUCTION

India has achieved a historic breakthrough in the development of its intellectual property system with the Trade Marks Registry accepting and granting protection to India’s first olfactory or smell trademark- a floral, rose-like aroma used on vehicle tyres, by Sumitomo Rubber Industries Ltd¹. in respect of Application No. 5860303. The decision is a landmark in Indian trade mark law and it broadens the very concept of what a “mark” could be under the Trade Marks Act, 1999. Traditionally, trademarks in India were confined to visual or audible elements, such as words, logos, shapes and sounds (Graphical representations). The acceptance of a smell mark acknowledges that modern branding extends beyond purely visual and auditory cues, even sensory experiences like smell, can act as indicators of commercial origin provided they clear the legal and scientific standards.

BACKGROUND: A UNIQUE AND LEGALLY COMPLEX APPLICATION

The application sought protection for an unprecedented category of trademark in the field of “FLORAL FRAGRANCE/SMELL OF ROSES AS APPLIED TO TYRES” in class 12 which has never been the subject matter of registration in India. The Trade Marks Registry objected stating that the mark cannot be represented graphically as stated in Section 2(1)(zb)², and that it is lacking in distinctiveness within the meaning of Section 9(1)(a)³ of the Trade Marks Act, 1999 and the Rules. Smell marks are inherently difficult to assert and establish, as they are not visual and are influenced by perception and interpretation. Unlike logos or word marks, one cannot simply put a smell on a piece of paper or draw one. In response to these objections the applicant referred to scientific evidence, comparative international jurisprudence and an innovative scent representation model.

THE BREAKTHROUGH: HOW A SMELL WAS SHOWN ON PAPER

To address the issue that smell cannot be visually perceived and that for obtaining a trademark graphical representation is needed, researchers from IIIT Allahabad⁴ devised a new concept. Instead of describing the smell using subjective terms “nice” or “floral”, they decomposed the smell into seven basic smell categories: floral, fruity, woody, sweet, minty, among others, commonly referred to as the seven-dimensional (7-D) vector model. They then assigned numbers to each type of smell’s intensity.

The values were assembled in a radar chart portraying the smell in a visual manner. This chart functioned as a visual ‘smell map’ indicating what kind of smell it is and how much intensity you get from each component of smell.

Because of this method, the odour was no longer a subjective sensation which differed from individual to individual. It was objective and quantifiable. Anyone who looked at the chart would know what odour was being asserted. The Controller accepted this approach and remarked that the smell was now clearly exhibited, intelligible and well defined. Accordingly, the legal requirement of being “in the form of a graph” was fulfilled.

DISTINCTIVENESS: WHY THE ROSE SMELL WAS ACCEPTED

The question the Trade Marks Registry then had to consider was whether the odour could enable the public to identify the source of the goods (tyres) and differentiate them from the tyres of other undertakings in the market. The Controller said that the use of rose like fragrance on tyres is highly unusual. Rubber products (Tyres, gloves etc) usually smell like rubber, not flowers. As a result, the scent is unrelated to tyres in either a natural or utilitarian sense. In trade mark law, such a mark is known as an arbitrary mark and arbitrary marks are considered strong.

As buyers are not used to tyres smelling floral. The rose aroma immediately stands out and attracts consumer attention. The fragrance of roses is also familiar and recognizable to most people, and it does not vary much between individuals so when a car with these tires passes, people will smell the rose and they will associate that smell with a company. In this manner, the scent performs a source identifying function similar to a logo or brand name.

The Registry further observed that the related scent had previously been registered in other countries, which supported the notion that it is possible to point to a single origin. As such, the Controller stated that the conclusion was that the rose-like smell is inherently distinctive, i.e. it is distinctive in its own right and does not require proof of use for a long period of time.⁵

HOW THE TRADE MARKS OFFICE EXAMINED AND DECIDED THE APPLICATION?

Having accepted that the smell could be visually represented and was distinctive, the Trade Marks Registry went on to consider whether such a representation could be used in trade mark practice. In absence of prior Indian precedent on smell trademarks, the Registry was concerned as to whether the scientific model applied by the applicant was clear, reliable, easily understood by examiners and the public. The Controller noted that applicants are not limited to traditional methods for proving trademark use. As long as the methodology applied is clear, precise and objective, even novel methodologies can meet the requirements under the statute. Here, the seven-dimensional vector model satisfied these criteria and enabled the Registry to pinpoint the exact odour being asserted.

No effect of the scent mark

Another central issue dealt with by the Registry was whether the smell served a purpose of utility. Under trademark law, functional features of a product, or those that are necessary or useful to it, are not protectable. The Registry found that a rose scent added to tyres did not enhance performance, cover up faults or confer any other technical advantage. The odour was introduced solely for branding and identification. Since the scent was artificially introduced and served no utility, the Registry considered the scent mark as non-functional and thus can be registered as a trademark.

Reliance on International Precedents

The Trade Marks Registry also referred to international trademark practices while evaluating the application. The same rose-like smell was registered in various jurisdictions like the United Kingdom and so on. The Registry also took into account the approaches followed in the United States and Australia, as well as rulings by the European Union, including the famous “Fresh Cut Grass” judgment⁶. This comparative review ensured that the Indian ruling was in line with international trademark norms and standards and was well supported and grounded within the Indian law.

The Decision and Its Impact

Having perused all the material on record, the Controller was of the view that the smell mark fulfilled the requirements of graphical representation and distinctiveness as envisaged under the Trade Marks Act, 1999. The Registry was directed, accordingly to accept the application and to publish it in the form of an olfactory mark. This was the first time that a smell trade mark was formally recognized in India and an important precedent was established for non-traditional trademarks.

CONCLUSION

The acceptance of India’s first smell trademark marks the beginning of a new phase in Indian trademark law. The decision confirms that a scent can function as a trademark when it is clearly represented and capable of distinguishing goods. The Trade Marks Registry has now expanded its scope in relation to non- traditional trademarks in that it recognised that a scent mark can operate as a trade mark. This decision is a futuristic vision for brand protection and it paves the way for sensory branding in India, on the condition that established legal safeguards are complied with.

Footnotes

^{1 India’s First Smell Trademark: Sumitomo Rubber’s Rose Fragrance for Tyres, LIVELAW (Nov. 2025), https://www.livelaw.in/ipr/india-first-smell-trademark-sumitomo-rubber-rose-fragrance-tyres-310803.}

^{2 Trade Marks Act, 1999, § 2(1)(zb) (India).}

^{3 Trade Marks Act, 1999, § 9(1)(a) (India).}

^{4 How to Capture the Scent of a Rose on a Graph for a First-of-Its-Kind Trademark in India, THE PRINT (Nov. 2025), https://theprint.in/india/how-to-capture-the-scent-of-a-rose-on-a-graph-for-a-first-of-its-kind-trademark-in-india/2791664.}

^{5 Trade Marks Registry Green Lights Registration of India’s First Smell Mark, BAR & BENCH (Nov. 2025), https://www.barandbench.com/news/law-odour-trade-marks-registry-green-lights-registration-of-first-smell-mark.}

^{6 India’s First Smell Mark: A Landmark Shift in Non-Traditional Trademark Jurisprudence and What It Means for Future Applicants, KSK (Nov. 24, 2025), https://ksandk.com/intellectual-property-rights/indias-first-smell-mark-and-its-impact-on-future-applicants/.}

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