A New Milestone in India: The Rise of the First Registered Smell Mark

Most people immediately associate trademarks with brand names and logos. Yet as markets evolve and global competition intensifies, companies are finding increasingly innovative ways to distinguish themselves. This has given rise to what are commonly known as non-traditional trademarks, a category that goes beyond words and logos to include:3D or shape marks, holograms, sound marks, pattern marks, motion marks, colour marks, multimedia marks, “other” unconventional signs, and of course, the star of today’s blog, smell (olfactory) marks.

As mentioned in another post, smell trademarks are by far one of the most difficult to secure in the European Union due to the current legal and technological limitations surrounding the representation of scents.

However, India has recently taken a groundbreaking step that has captured the attention of IP practitioners worldwide. 

That’s right, India’s Trade Marks Registry has accepted its first smell mark application. The Controller General of Patents, Designs and Trade Marks (CGPDTM) approved the application filed by Sumitomo Rubber Industries Ltd. for a scent described as “Floral fragrance / smell reminiscent of roses as applied to tyres” under Class 12 (tyres for vehicles).

However, before we analyse this decision and why it is so significant and interesting for new businesses, we must first understand the legal framework in India. 

Legal Framework Background

Understanding how India has arrived at its first accepted smell mark requires stepping back and looking at the legal landscape in which it operates. 

Unlike some modern trademark statutes, India’s Trade Marks Act, 1999 does not expressly mention olfactory or scent marks. For decades, Indian practice had revolved almost exclusively around visual signs, such as words, logos and labels. In this context, the notion of trademarking a fragrance seemed theoretical at best.

It should be noted in this regard that, unlike current EU regulations, Section 2(1)(zb) defines a trademark as a sign that is 'capable of being represented graphically' and that can distinguish the goods or services of one undertaking from those of another. Therefore, the requirement for graphic representation still applies.

Although this wording does not exclude aromas, it immediately raises a key issue: how can a smell be clearly, precisely and intelligibly represented graphically? 

Traditional methods, such as verbal descriptions, chemical formulas and physical samples, cannot fully capture the olfactory experience. The Indian Registry has historically interpreted graphic representation strictly, as was the case in the EU. 

Another challenge for smell trademarks is the question of distinctiveness. According to Section 9 of the Act, all trademarks, whether traditional or non-traditional, must be capable of distinguishing one trader's goods from another's. This is an especially high bar for fragrances. Why? You might ask. Well, because a scent must not only be pleasant, it must also act as a badge of commercial origin. It must also be non-functional, meaning it cannot be produced naturally by the product or contribute to its performance.

This is the reason why; the recent acceptance of Sumitomo Rubber Industries’ application marks a genuine shift. 

Having said that, we should now discuss the decision. Why the change of heart?

Sumitomo Case Summery

In March 2023, the Japanese manufacturer Sumitomo Rubber Industries filed an application in India to register a highly unconventional trademark: a “floral fragrance / smell reminiscent of roses as applied to tyres.” 

The application immediately ran into two predictable hurdles. Firstly, the Registry questioned whether a smell could function as a means of identifying commercial origin, raising concerns under Section 9(1)(a) regarding a lack of distinctiveness. Secondly, and more critically, the mark failed to satisfy the graphical representation requirement under Section 2(1)(zb), which has long been an obstacle for olfactory marks.

To address the challenge of representing the smell in a legally acceptable form, a seven-dimensional olfactory vector was submitted, developed by researchers at IIIT Allahabad. This scientific model identified the key volatile organic compounds responsible for the rose-like fragrance and mapped them across seven fundamental olfactory axes floral, fruity, woody, nutty, pungent, sweet, and minty. The resulting graph, which blends principles of chemistry, sensory science, and machine learning, offered a precise and self-contained visualisation of the scent profile. According to the applicant, this method met the established criteria for graphical representation, namely clarity, precision, intelligibility, objectivity, and durability.

Once the representation issue was resolved, the Registry turned back to distinctiveness. It ultimately found the rose fragrance inherently distinctive for tyres because the scent has no functional or natural connection to rubber products. In this regard, it stated that a rose fragrance is not naturally associated with rubber tyres, but rather it is arbitrary and therefore inherently distinctive. 

On 21 November 2025, the Controller General issued a landmark order: the rose fragrance indeed functions as a source identifier and satisfies the statutory requirements. The application was therefore accepted for publication as India’s first registered olfactory trademark. 

Conclusion

India’s recent decision suggests a growing willingness within the Trade Marks Registry to interpret the law with greater flexibility, potentially opening the door to a new generation of smell trademarks. This development could present meaningful opportunities for SMEs, provided they understand the legal framework, evidentiary requirements and practical complexities of the Indian system.

If you would like to explore how these changes could affect the protection of your intangible assets in India, do not hesitate to reach out. The India Helpdesk is here to support you, offering free and fast consultations.