A Whiff of India’s First Olfactory Trademark

[Agastya Shukla is a Fifth Year law student at Panjab University, Chandigarh]

Introduction

On 21 November 2025, the Trade Marks Registry (Registry) , India accepted the first Indian application for an olfactory trademark. The Controller General of Patents, Designs and Trade Marks, directed that application No. 5860303 filed by Sumitomo Rubber Industries Ltd. (Sumitomo), for a “floral fragrance/smell reminiscent of roses as applied to tyres” in Class 12, be advertised in the Trade Marks Journal as an olfactory mark. The Registry’s reasoning, set out at length in the order, addressed two threshold statutory requirements: graphical representation and distinctiveness under section 2(1)(zb) of the Trade Marks Act, 1999 (the Act). This article examines the Registry’s reasoning, its reliance on the scientific graphical model, and the broader doctrinal and policy implications for non-conventional trade marks in India. The analysis places heavy reliance on the Registry’s order and its annexed scientific material.

Background to the Application

The application faced initial objections under Sections 9(1)(a) and 2(1)(zb) of the Act. The Registry questioned both the distinctiveness of the fragrance and whether it met the requirement of graphical representation that applies to all trademarks.  

Sumitomo submitted that it has infused a rose-like scent into tyres since 1995 as part of a broader product-innovation strategy. It further argued that the fragrance has acquired distinctiveness in international markets. The applicant relied on its earlier UK registration for the same mark, which was the first smell mark recognised in that jurisdiction. According to Sumitomo, the scent of roses is universally recognisable and inherently distinctive and, when applied to an unexpected product such as tyres, serves to indicate commercial origin.

Graphical Representation: The IIIT Allahabad Model and the Statutory Test

Section 2(1)(zb) requires that a trade mark be “capable of being represented graphically.” The Registry emphasised that the Act’s inclusive definition of mark and the statutory test must be given effect while preserving the intent behind the graphical representation requirement. The Registry observed that conventional graphic devices used for words and device marks cannot capture olfactory experience in the same manner. Nevertheless, it concluded that the IIIT model sufficiently met the accepted criteria of being clear, precise, self-contained, intelligible, objective and durable.

The model maps a rose-like smell as a vector in a seven-dimensional space. Each dimension corresponds to one of seven “fundamental smell families”: floral, fruity, woody, nutty, pungent, sweet and minty. The vector indicates constituent elements and their relative strengths. Methodologically, the model rests on supervised machine learning, identification of top contributing volatile organic compounds and algebraic averaging of vectors to produce a durable graphical profile. The Registry’s acceptance of that representation rests on two peculiar findings. First, the graphic defines the metes and bounds of the smell sufficiently for authorities and the public to determine the subject matter of protection. Second, the representation is unlikely to vary in a manner that would render the claim indefinite or unknowable on the register.

This approach marks a notable shift from earlier European authorities that rejected chemical formulas, olfactory sample deposits or vague descriptions as insufficiently precise. The Registry’s analysis demonstrates a willingness to treat rigorously validated scientific modelling as a legitimate mode of “graphical” representation in the statutory sense.

Comparative Analysis from Europe and the United States

The Indian decision can be better understood when placed against key cases from Europe and the United States, where the recognition of smell marks has historically been uneven. Four decisions illustrate the two principal issues that shape outcomes in olfactory trademark cases: graphical representation and distinctiveness.

The Myles Case: The Scent of Raspberries for Engine Oil

In Europe, the Third Board of Appeal rejected an application for the scent of raspberries for fuel and engine oil. Although the Board accepted that indirect graphic representation may suffice for marks that cannot be represented literally, it ultimately held that consumers would perceive the scent merely as an attempt to make the product fragrant. The smell did not function as an indicator of origin and therefore lacked distinctiveness.

The Sieckmann Case: Methyl Cinnamate and the Limits of Graphic Representation

The seminal case of Ralf Sieckmann examined whether an olfactory sign could be graphically represented through a chemical formula, a written description or a deposited sample. The Court of Justice of the European Union held that any graphical representation must be the following: clear, precise, self-contained, easily accessible, intelligible, durable and objective. This case rejected a chemical formula, a verbal description and even the deposit of an odour sample as insufficiently compliant with these standards. The Siekmann criteria were designed to prevent ambiguity in the scope of protection and to ensure that trade mark registers serve their notice function effectively. The mark was therefore held to lack distinctive character.

The Fresh Cut Grass Case: A Successful Registration

In contrast to the above, the EUIPO’s Second Board of Appeal allowed the registration of the smell of freshly cut grass for tennis balls. Drawing an analogy with sound marks, the Board held that a written description may suffice if it conveys a clear and recognisable concept to consumers. In this matter, the description invoked a universally familiar and memorable olfactory experience, allowing the mark to be registered.

The Plumeria Blossoms Case: Consumer Recognition in the United States

In re Celia Clarke, the USPTO recognised the smell of plumeria blossoms for sewing thread and yarn. The Board found that the applicant was the only source of scented thread and that consumers had come to associate the distinctive scent with the applicant’s goods. The scent was an applied feature and not a natural characteristic of the goods, supporting a finding of acquired distinctiveness.

Such comparative jurisprudence on olfactory marks turns on two issues: whether the scent can be adequately represented and whether it can identify commercial origin. The raspberry-scent for engine oil was considered representable but rejected as merely decorative. The fruity-cinnamon scent failed because neither a chemical formula nor a description met the required precision. The smell of freshly cut grass for tennis balls was accepted since, in the specific application, a clear written description was deemed sufficient by the European courts. In the US plumeria-blossom case, graphical form was not central; however, the mark succeeded because exclusive use and consumer recognition established distinctiveness. These precedents reflect the assessments made by the authorities, and despite their flexibility with the representation, they require strong evidence that the scent operates as a trademark rather than a simple fragrance.

Analysing the Implications of the Decision

On distinctiveness, the Registry observed that the scent of roses had no connection with the nature or characteristics of tyres. The fragrance, in particular, was therefore arbitrary in relation to the goods and capable of distinguishing the applicant’s products. The Registry highlighted the contrast between the typical smell of rubber and the rose-like fragrance, noting that such a distinction made by Sumitomo would aid consumers to distinguish and associate the product with its commercial source.

Three natural corollaries follow from this decision. First, that the Registry is willing to recognise scientific methods of graphical representation for olfactory marks with baseline requirements of clarity and precision in their respective representation. Second, the decision embraces a functional understanding of distinctiveness that focuses on consumer perception and the arbitrariness of the sign in relation to the goods. Third, the order may encourage applicants across industries to explore non-traditional branding strategies, including scent, sound and other sensory attributes, especially where they can be shown to enhance consumer recall by the means of graphical representation. 

On the flip side, this scenario isn’t all roses as it might smell. The fundamental problem faced by courts while dealing with such trademark(s) and their antecedent IP rights is the balancing act of keeping voluminous scientific complexity in line with the larger trademark protection regime. Granting protection to olfactory marks risks extending trademark law into a domain where subjectivity and scientific complexity are deeply embedded. Unlike visual or verbal marks, scents lack consistent perceptibility, vary with environmental factors and depend heavily on technical methods for identification and comparison. The acceptance of such an olfactory trademark will bring in a slew of such filings without any clarity on examination and approval guidelines and thus, in this context, it is worth asking whether the trademark system is fully prepared for the nuanced challenges that accompany olfactory recognition, or whether such protection risks creating uncertainty until clearer regulatory and judicial frameworks evolve. 

Conclusion

The recognition of India’s first olfactory trademark is a landmark moment in the evolution of Indian trademark law and its unrolling jurisprudence. By accepting a scientifically modelled graphical representation and acknowledging the distinctiveness of a common (yet arbitrary) fragrance, the  Registry has opened the door for broader acceptance of non-traditional marks. The order will be a touchstone for future trademark filings and litigation in the field of sensory trademarks, and thus, it calls for appropriate doctrinal and practical development by practitioners, courts and the Registry.