Introuction
“Trademark law has moved beyond the purely visual to protect whatever functions as a source identifier.”
~ J. Thomas McCarthy
The evolution of Trademark has since a long time been intertwined with the shifts in innovation, consumer perception and business environment. Historically built around visual identifiers like images, shapes, words, logos, and colours, the legal framework governing trademarks has continuously expanded to embrace non-conventional marks as markets diversify and branding techniques grow more sophisticated.
However, among these new categories, olfactory trademarks have continued to be controversial worldwide because of the inherent challenges of graphically depicting fragrances and proving their uniqueness. In light of this, on November 21, 2025, the Indian Trade Marks Registry (herein referred as “Registry’’) issued a historic order allowing Sumitomo Rubber Industries Ltd. to market India’s first-ever smell trademark, which described “a floral fragrance/smell reminiscent of roses as applied to tires” in Class 12.[1]
The fact that different people may perceive the same smell differently is one of the main arguments against trademark protection for scents. Therefore, purchasers and trademark investigators may link a smell with completely different olfactory experiences even if it is distinctive and recognised. A language barrier may also make it challenging to find a precise and comprehensive explanation of a mark. Rather of specifying a particular smell, most individuals describe a smell by referring to the object they associate it with.
Context and Background
Initial objections to the application were raised under Sections 2(1)(zb) and 9(1)(a) of the Act. The Registry questioned the fragrance’s uniqueness as well as whether it complied with the all-trademark criterion of graphical representation.
- First, with respect to graphical representation under Section 2(1)(zb) of the Trade Marks Act, 1999, the Registry contended that the applied mark could not be graphically represented, as it consisted of a smell, an inherently non-visual element.
- Second, under Section 9(1)(a), the Registry held that the mark lacked the requisite distinctiveness and was therefore incapable of distinguishing the applicant’s goods from those of others.
An examination report reflecting these objections was issued on 4 August 2023.[2] In response, the applicant participated in multiple hearings, submitted detailed written representations, and filed a comprehensive reply on 27 September 2023.
As part of a larger product-innovation plan, Sumitomo claimed to have added a rose-like fragrance to tires since 1995. It went on to say that the fragrance has become unique in global markets. The applicant cited its prior registration for the identical mark in the UK, which was the first smell mark to be accepted there. According to Sumitomo, the aroma of roses is widely identifiable and intrinsically unique, and when added to an unexpected commodity like tires, it serves to reveal commercial provenance.[3]
Graphical Representation
In response to the objection regarding graphical representation, the Applicant relied upon the representation proposed by the amicus curiae, which was grounded in scientific research conducted at the Indian Institute of Information Technology, Allahabad. A team of three researchers from IIIT Allahabad developed a novel graphical model capable of representing a rose-like fragrance by mapping it as a vector within a seven-dimensional space. Each dimension of this model corresponds to one of the seven fundamental olfactory categories, namely floral, fruity, woody, nutty, pungent, sweet, and minty as illustrated in the Figure below:
For the purposes of compliance with Section 2(1)(zb) of the Trade Marks Act, 1999, the Applicant submitted that this visual representation should be read together with the verbal description of the mark, namely “Floral Fragrance / Smell Reminiscent of Roses as applied to Tyres,” so as to collectively satisfy the statutory requirement of graphical representation.
Analysis of the Implications
Fundamentally, a systemic conflict in trademark law is shown by the recognition of olfactory markings. In contrast to verbal or visual markers, fragrances are highly dependent on technical procedures for identification and comparison and are subject to environmental fluctuation. Extending trademark protection into this area has the potential of creating doctrinal ambiguity, especially in light of the lack of precise guidelines for infringement investigation, enforcement, and examination.
The ruling carries three notable doctrinal implications:
- First, it signals the Registry’s willingness to accept scientifically grounded forms of graphical representation for olfactory marks, thereby expanding the practical interpretation of Section 2(1)(zb). At the same time, the absence of clearly articulated benchmarks for assessing scientific sufficiency leaves both applicants and examiners without a predictable or uniform standard.
- Second, the decision adopts a flexible understanding of distinctiveness that prioritises consumer perception over the sensory form of the mark. While this approach is consistent with the underlying objectives of trademark law, it risks weakening the distinctiveness inquiry by overlooking the inherent difficulties associated with consistent consumer recognition of scent-based marks.[4]
- Third, the judgment is likely to encourage brand owners to experiment with non-traditional trademarks, which may result in a surge of complex applications without corresponding clarity in examination criteria or administrative preparedness.
The recognition of India’s first olfactory trademark marks a significant moment in the evolution of Indian trademark jurisprudence. By accepting a scientifically modelled form of graphical representation and affirming the distinctiveness of a commonly recognisable, yet legally arbitrary, fragrance, the Registry has signalled an openness to accommodating non-traditional marks within the existing statutory framework.[5]
This order is likely to serve as an important reference point for future trademark filings, oppositions, and infringement disputes involving sensory marks. At the same time, it underscores the need for corresponding doctrinal refinement and institutional preparedness.
I would like to conclude by quoting Justice Learned Hand “The test of a trademark is not its form, but its ability to convey a single source to the consumer.”
[1] Harsh Gour, Decoding India’s First Accepted Smell Trademark: ‘Rose-Fragranced Tyres,’ The Leaflet (Nov. 27, 2025), https://theleaflet.in/digital-rights/law-and-technology/decoding-indias-first-accepted-smell-trademark-rose-fragranced-tyres.
[2] India’s First Smell Trademark: CGPDTM Accepts Rose Fragrance for Tyres, S.S. Rana & Co., https://ssrana.in/articles/indias-first-smell-trademark-cgpdtm-accepts-rose-fragrance-for-tires/ (last visited Mar. 30, 2026).
[3] seo835, India’s First Smell Trademark and the Emergence of Sensory, Khurana And Khurana (Jan. 30, 2026), https://www.khuranaandkhurana.com/indias-first-smell-trademark-emergence-of-sensory-branding-in-indian-trademark-law.
[4] The Scent of the Sumitomo Trademark: What Is the Celebration About? – SpicyIP, https://spicyip.com/2025/11/the-scent-of-the-sumitomo-trademark-what-is-the-celebration-about.html (last visited Mar. 30, 2026).
[5] Apoorva Bn, LEGAL STATUS OF OLFACTORY MARKS UNDER THE TRADEMARK LAW REGIME, 1.