INDIA’S TRADE MARKS REGISTRY recently accepted its first “smell mark” application. The Controller General of Patents, Designs and Trade Marks (‘CGPDTM’) last week approved Sumitomo Rubber Industries Ltd.’s application for “FLORAL FRAGRANCE / SMELL REMINISCENT OF ROSES AS APPLIED TO TYRES” (Class 12: tyres for vehicles) on a proposed-to-be-used basis.
This case forces Indian trademark law to confront an age-old question: can an odour, an inherently subjective sensory perception, function as a legally protectable indicator of commercial origin?
Under Indian law (as under TRIPS), a trademark must be a “mark capable of being represented graphically” and distinctive. Traditionally, this meant visual signs (words, devices, colours). A smell, by contrast, has no visible outline. The Sumitomo mark, therefore, challenged the routine workings of the Trade Marks Act, 1999 (‘the 1999 Act’) and Rules.
As the Order (dated 21/11/2025) notes, “the application was examined 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, which is a mandatory requirement under the Act.” The applicant appealed through written submissions and hearings, with senior IP counsel Pravin Anand appointed as amicus curiae to advise impartially.
A smell mark (or olfactory mark) is simply a trademark defined by an odour rather than a visual or textual sign.
Smell (Olfactory) Marks
A smell mark (or olfactory mark) is simply a trademark defined by an odour rather than a visual or textual sign. In principle, any “sign” that tells consumers about origin may qualify. Trademark regimes worldwide have gradually acknowledged non-traditional marks, including sounds, colours, shapes, and potentially smells, which can serve as source identifiers if they meet the law’s criteria.
Notably, the Paris Convention’s “telle quelle” clause suggests that a mark registered abroad should, in principle, be accepted “as is” unless it conflicts with local law. Under TRIPS (Article 15), member states may require marks to be “visually perceptible”, but they may also allow broader categories at their discretion.
The 1999 Act follows the pattern of many systems: it does not expressly exclude non-visual marks. Indeed, Section 2(1)(m) defines “mark” in inclusive terms (“a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof”). A literal reading could accommodate smells, so long as the two conditions of Section 2(1)(zb) are met.
Internationally, only a few olfactory marks have been registered. The UK famously accepted its first smell mark in 1996 - the identical Sumitomo rose-scent mark (UK Reg. No. 02001416) for tyres and another for “strong smell of bitter beer” on darts’ flights. The EU has not outright banned scent marks, but in Sieckmann v. DPMA (ECJ 2002) the Court set a strict representability test: a scent must be graphically represented in a manner which is clear, precise, self-contained, easily accessible, intelligible, durable and objective.
In the United States, by contrast, the focus is on functionality and distinctiveness: scent marks are registrable if the fragrance is non-functional (not inherent to the product) and unmistakably source-identifying. For example, the famous TTAB case In re Clarke (1990) upheld “fresh floral fragrance reminiscent of plumeria blossoms” for sewing thread, reasoning that a fragrance can “function as a trademark” if uniquely used by one party. The US Examining Manual (TMEP §1202.13) requires a detailed description of the scent; samples can be filed, but no standard image is needed.
In India, until now, no mark filing had formally tested the system’s receptivity. Sumitomo’s case is therefore a significant test case.
Legal requirements: Graphical Representation and Distinctiveness
Under Section 2(1)(zb) of the Act, a trademark must (i) be “capable of being represented graphically” and (ii) “capable of distinguishing” the applicant’s goods/services. Section 9(1)(a) then forbids registration of marks “not capable of distinguishing”. In plain terms, a scent mark must come with some (non-visual) depiction, and it must be inherently or in fact distinctive of source. This is the same rule that applies to all marks: colour patches, motion marks, and so on - but in those cases the “picture” requirement has an easy analogue (e.g. a colour swatch or film clip). For smells, the hurdle has always been how to sketch an odour on paper.
Graphical Representation [Sec 2(1)(zb)(i)]: The Act’s wording calls for a “graphical” depiction. The 1999 Rules elaborate that applications must include a representation of the mark. Guidance is mostly for conventional marks (word, device, etc.). There is no separate rulebook for smells. In theory, a “verbal description” of a smell can function as a representation akin to how music may be “represented” by lyrics, but the Registrar will demand that this representation be “clear, precise, self-contained, intelligible, objective”. This echoes Sieckmann.
Accordingly, the Registry doubted at first how a scent could be graphically “depicted” in a register that expects symbols or drawings. Indeed, Sumitomo’s online application had to choose “word mark” since no “smell mark” category exists. Later, the accepted entry oddly labels the trade mark type as “Device,” but these semantics aside, the crux was: what representation will meet Section 2(1)(zb)?
Distinctiveness (Sec 2(1)(zb)(ii) & Sec 9): A mark must identify goods as emanating from one source. The Registry noted that the application lacked distinctiveness, since on its face a scent description might seem simply descriptive or generic. Sumitomo argued that a rose fragrance is not naturally related to rubber tyres - it is arbitrary and therefore inherently distinctive. In other words, no one else “needs” to smell like roses to sell tyres.
Sumitomo argued that a rose fragrance is not naturally related to rubber tyres - it is arbitrary and therefore inherently distinctive.
Further, the company had used the rose scent in its tyres (since 1995) so that consumers do, in their experience, associate that smell with Sumitomo. Thus, they sought to show acquired distinctiveness (secondary meaning) as well as inherent distinctiveness. Practically speaking, this means demonstrating that the fragrance mark “functions” as a trademark, i.e. when people smell a rose-scented tyre, they think of Sumitomo, not just “oh, this tyre has a smell.”
Accordingly, both prerequisites had to be satisfied: a valid graphical portrayal and an unmistakable link to source. Section 2(1)(m) of the Act is neutral on senses, but offers no shortcut. Nothing in the text says smell is forbidden, yet it equally provides no blessed formula. Traditional applicants must “picture” their marks, whereas here Sumitomo had to innovate.
The Rose-Fragrance application
Sumitomo’s application (filed Mar. 23, 2023) sought a trademark on “tyres for vehicles” (Class 12) described only as the “floral fragrance/smell reminiscent of roses as applied to tyres”. The original Form TM-A insists the mark is “an olfactory smell trademark for tyres that smell of Roses.”
Anand & Anand, the law firm, Sumitomo’s agent, explained that the e-filing system lacks a smell-mark category, so the mark was logged as a “word mark” only to get the filing through. They attached a copy of Sumitomo’s UK registration (UK Reg. 00002001416 dated 1996) and press clippings touting it as the first-ever smell mark.
The Registry’s first examination report (of August 2023) objected on the two grounds above. Sumitomo (through its counsel) responded and also submitted scientific evidence. A scientific graphical representation was submitted by Amicus, prepared by Prof. Pritish Varadwaj, Prof. Neetesh Purohit and Dr. Suneet Yadav of IIIT Allahabad.
The IIIT Allahabad Vector Model
The heart of this case is the 7-dimensional vector representation of the scent. Using an established model of olfaction, researchers from the Indian Institute of Information Technology, Allahabad, plotted the composite “rose-like” odour onto seven axes (floral, fruity, woody, nutty, pungent, sweet, minty). In their report (dated September 13, 2024), they explain that a rose’s aroma arises from a complex mixture of volatile compounds interacting with human olfactory receptors. They assigned each of the seven fundamental smell-families a numeric weight corresponding to the rose profile, and drew a radar-chart-like graph. The Order recites:
“A complex mixture of volatile organic compounds released by the petals interact with our olfactory receptors, creating a rose-like smell. Using the technology developed at IIIT Allahabad, this rose-like smell is graphically presented above as a vector in the 7-dimensional space wherein each dimension is defined as one of the 7 fundamental smells, namely floral, fruity, woody, nutty, pungent, sweet and minty.”
In other words, the intangible aroma is “captured” by this scientific scheme. The Order (para. 34) commends the diagram:
“The graphical representation is detailed and clearly defines and distinguishes, with a scientific temperament the presence of the constituent elements, including their scale or weightage in the overall composition. The graphical representation would enable the competent authorities and the public to determine the precise subject matter of protection. I am therefore of the considered opinion that the above representation sufficiently captures the metes and bounds of the smell in question and complies with the mandatory requirements of section 2(1)(zb) of the Act.”
Critical assessment and the expanding horizon
This solution seems innovative but raises critical questions. The vector attempts to provide a concrete depiction of the scent profile, arguably satisfying the letter of the law. It transforms an amorphous sense-impression into data. Compared to simple word-description (e.g. “rose fragrance”), the vector is detailed and unambiguous; different flowers would produce different vectors, and even technical users (scientists, officials) could distinguish them.
Can the average consumer use a 7D vector to identify a mark? Probably not directly. In practical terms, the enforcement of a smell mark may still rely on expert evidence about the scent. The 7D model has no analogue in other marks.
The IIIT model also assumes technology that may evolve. Today, it uses these 7 dimensions; tomorrow, someone might refine the science. Would each mark need periodic re-charting?
The Registry seems to view the current chart as fixed evidence of distinctiveness. If challenges come (e.g. a different rose variant has a slightly different vector), how will that be handled? These concerns echo broader critiques that non-visual marks face an insurmountable representability barrier because no “generally available technology” yet standardises smell descriptions. India’s approach here sidesteps that by accepting the specific technical exhibit. It’s a bold step, essentially treating a scientific document as the “logo” of the scent.
The Sumitomo case touches on several broader themes in IP and policy
Innovation and Commercial Strategy: On the optimistic side, protecting olfactory marks can incentivise research into sensory branding. Sumitomo invested decades (since 1995) in developing rose-scent tyres, aiming to differentiate its products in a crowded market. The legal recognition may spur others to innovate scents, not just in automotive, but in fields like cosmetics, pharmaceuticals or consumer goods. For example, a pharmaceutical company might infuse a signature smell in its medicine to build brand recall. At a time when physical markers of origin (like packaging) are easily copied, a patented scent adds a layer of exclusivity.
Pharmaceutical monopolies: Here, caution is needed. If a drug or pill has a distinctive odour, trademarking the smell could extend exclusivity beyond the patent term. A generic manufacturer could be prevented from making a virtually identical-smelling product if it infringes the mark. This raises competition and public health concerns. India’s decision does not directly impinge on drug policy, but it opens the door to possible multi-faceted monopolies (patent + scent TM) that regulators and courts will need to watch carefully.
Consumer perception: Trademarks ultimately serve the consumer by signifying source and quality. The Registry’s reasoning assumes consumers will recognise a rose smell as the mark. Psychologically, smell is linked to memory strongly, so a distinctive fragrance can indeed trigger brand recall. A scent may be one of the most reliable senses for human memory. However, tastes and smells are also subjective and context-dependent. Will all consumers instantly know “that’s the Sumitomo rose tyre”? If only a few people smell it, is that an adequate alert function?
These questions hinge on how widely the scented product is used in commerce. If sold on open roads, many bystanders might perceive the scent, but if it’s a niche luxury item, few will. There is a risk of both over-inclusion (monopolising a common scent) and under-inclusion (confusing consumers if too subtle).
Regulatory consistency: India must reconcile this outcome with its international obligations and domestic policy. TRIPS permits members to require marks to be visually perceptible, but does not force them to. The decision arguably expands the scope of registrable signs beyond what many TRIPS signatories have done in practice. Some might question whether India is diverging from, say, the EU consensus.
However, TRIPS also bars discriminating against “new types” of marks if a comparable domestic mark is treated the same. India already registers sounds, colours, 3D shapes, etc. Accepting smells arguably flows from that liberal trend. It will be important that the Patent Office issues clear guidelines (possibly by amending the Rules) on how to handle olfactory marks in the future, for instance, what constitutes a valid olfactory representation, or how to examine functionality in this context.
Public interest: The Act’s goal is consumer protection and market clarity, not granting monopoly on nature. The rose scent of course is a natural phenomenon, but here it is applied artificially to tyres. The Order itself emphasises that the smell has no direct relationship with the nature, characteristics or use of tyres, framing it as an arbitrary add-on. That narrative helps justify protecting it: if it were merely incidental or functional (like a lemon scent in a cleaning product), it would not be eligible. In terms of public interest, allowing smell marks could aid consumers by making products more distinctive; but it could also complicate things if companies start policing “non-visual passing off” (can one smell another tyre-maker’s product and sue?).
Enforcement of such a mark will require expert evaluation. There is also a broader democratic question: how far should intellectual property shield corporate branding? One can imagine future debates on whether Parliament should clarify the law (e.g. amending the Act to expressly include or exclude scents, or providing an explanation in the Rules).
In practical terms, the enforcement of a smell mark may still rely on expert evidence about the scent.
Forward-looking
This case sets a precedent, but it is not the final word. The mark is accepted and advertised for opposition. Competitors or public groups may file oppositions or appeals (for example, questioning the graph’s adequacy or the mark’s distinctiveness). Meanwhile, the Trademarks Registry may see further applications for olfactory marks. Policymakers and legal scholars should monitor how these unfold. In particular, the government might consider issuing guidance, perhaps an updated manual on the treatment of sensory marks. The Registrar’s adoption of a scientific model appears to be a pragmatic adaptation of old law to a new commercial profile aspect. Still, a clear and explicit rulebook could make future cases more predictable.
On a concluding note, India’s recognition of the rose-scented tyre mark is an expansion of trademark protection, which is grounded in existing principles but pushes their boundaries. It depicts that as markets innovate (by blending mechanical and sensory engineering), the law (and particularly lawmakers) must stay alert. The decision opens the door.
Ultimately, the question remains whether smells, as an intangible yet powerful human sense, should serve as trademarks. For now, India has answered “yes” in this instance, subject to the usual checks (distinctiveness, non-functionality, etc.). Time and possibly higher-court review will tell whether this is a one-off or the start of a fragrant frontier in intellectual property law.
Note: The official e-register now shows Trade Mark Application status as “Accepted & Advertised” in Journal No. 2236 dated November 24, 2025.