Introduction: The Invisible Brand

Say you have entered a shoe store to buy some sneakers. You expect the sharp, rubbery smell of new shoes. Instead, a cool burst of fresh peppermint hits your senses. No logo, no label, no salesperson; just that clean-smelling scent, and you already have a sneaking suspicion as to which sneaker company owns this one. If a scent can lead you to the origin of a product as accurately as a visual symbol, should not that odour get just as much protection, the logical next step toward turning other forms of sensory input into trademarks?

For years, the idea of protecting a smell as a trademark felt like something India talked about in theory but never truly embraced. After all, most of us shop with our eyes, that is to say, logos, colours, packaging, etc., tell us who made a product. But marketing has changed. Brands today want us to feel them, hear them, even smell them. While countries like the US moved in this direction long ago, India was held back by rigid procedures and a lack of legislative guidance. That hesitation finally broke in late November 2025, when the Indian Trade Marks Registry recognised the country’s first-ever “smell mark” for a rose-scented tyre. In one decision, India signalled that trademarks are no longer limited to what we see, but they now extend to what we feel, experience, and remember.

Background

To have a proper understanding of the actual impact of the recent decision, we must take a look at where the concept began. The United States of America has long been the pioneer of non-conventional trademarks.

US Perspective

The global benchmark for smell marks was set in 1990 with the case of In re Celia Clarke. Celia Clarke, a businesswoman, sought to register a “high-impact, fresh, floral fragrance reminiscent of Plumeria blossoms” as used with her sewing thread and embroidery yarn. The United States Patent and Trademark Office (USPTO) initially turned it down before the Trademark Trial and Appeal Board (TTAB) reversed the decision on appeal. They established two critical tests that became the global standard:

1. Non-Functionality: The smell must not be essential to the product. For example, you cannot trademark the smell of a perfume or an air freshener because the smell is the product. However, a thread does not need to smell like flowers to function as a thread. Therefore, the scent was purely aesthetic, i.e. arbitrary in a sense.
2. Distinctiveness: Clarke proved that customers identified her company specifically by that smell.

Indian Situation

On the other hand, in contrast, India has struggled with the procedural aspect of the registration of these unconventional marks. Under section 2(1)(zb) of the Trade Marks Act, 1999, a trademark is defined as “a mark capable of being represented graphically…” 

Rule 2(1)(k) of the Trade Marks Rules, 2017 clarifies that “graphical representation means the representation of a trade mark for goods or services in paper form.”

These seemingly simple provisions have been the death knell for smell marks in India. How do you graphically represent a smell? You cannot draw it. You cannot write it down because words are subjective (what one considers “fresh,” another might consider “soapy”). Traditionally, India followed the rigid “Sieckmann Test” (from the European Court of Justice case of Sieckmann v. Deutsches Patent), which ruled that a graphical representation must be “clear, precise, self-contained, easily accessible, intelligible, durable, and objective.” For years, no chemical formula or written description could satisfy these seven strict adjectives in India.

Main Discussion

The deadlock was broken by Sumitomo Rubber Industries, a Japanese company that filed an application (App. No. 5860303) for a “floral fragrance/smell reminiscent of roses as applied to tyres” in Class 12.

As expected, the Registry raised the standard objections, i.e. distinctiveness and graphical representation. The examiner argued that a smell cannot be represented on paper. However, Sumitomo did not rely on mere words. They collaborated with professors from IIIT Allahabad to bridge the gap between law and science.

Consequently, they submitted a 7-Dimensional Vector Model. Basically, instead of just saying “it smells like a rose,” they plotted the smell on a scientific radar chart across seven fundamental olfactory axes: Floral, Fruity, Woody, Nutty, Pungent, Sweet, and Minty.

By mapping the “Rose Tyre” scent onto specific numerical coordinates, they essentially created a digital fingerprint for the fragrance. The Controller General accepted this as a valid graphical representation, noting that the same was objective and precise enough to satisfy the Act.

This decision is fascinating because it expands the legislative intent of the 1999 Act. Section 2(1)(m) of the Act defines a “mark” in an inclusive manner, laying down an indicative list consisting of device, brand, heading, etc.  Thus, by accepting the vector graph, the Registry has effectively interpreted “graphical representation” to include “scientific data visualisation.” This moves Indian trademark law from a visual-static era to a scientific-dynamic era. The Registry also accepted that for tyres, a rose smell is “arbitrary” as tyres naturally smell of rubber; infusing them with roses serves no technical function other than branding, thereby passing the functionality test.

Critical Analysis: Opening a Pandora’s Box?

While the Sumitomo order is a victory for innovation, it raises several problematic questions that legal scholars must now grapple with.

a) The Floodgates Argument: If a rose smell can be trademarked, where does it stop? We might see a rush of applications for scents in mundane products such as lemon-scented furniture and vanilla-scented files, to name a few. The Registry may struggle to distinguish between a scent that is a “brand/ product source identifier” and a fragrance that is simply a “pleasing feature” to boost sales. If every product starts having a trademarked smell, the market could become an olfactory minefield for competitors.

b)  Lack of Standardisation: The biggest critique of this decision is the validity of the “7-Vector Model.” While it sounds scientific, is it the official standard?

In answering the question, it must be said at the very beginning that the Trade Marks Act does not prescribe this specific 7-vector method formally. If another company comes up with a “5-vector model” or a “Gas Chromatography” chart, will the Registry accept it?

Additional questions arise as to how scientific models rely on inputs. The “Minty” axis might be calibrated differently by different scientists. Without a standardised, government or parliament-approved method for indexing smells (e.g. the Pantone system for colours), allowing private scientific models creates legal uncertainty.

c)  Enforcement Nightmare: Trademark rights are only useful if they can be enforced. How will a judge decide an infringement case? Imagine a local manufacturer starts making “Lotus-scented tyres”. Sumitomo sues them, claiming it is deceptively similar to their “Rose” scent.

• Does the judge smell the tyre – raising the issue of judicial subjectivity?
• Do they send the tyre to a lab – a process that is costly and slow?
• What if the smell fades over time – the durability problem from the Sieckmann test? Unlike a logo, which can be visually compared side-by-side in court, comparing smells requires a sensory acuity that the judiciary is not equipped for.

d)  Legislative Silence: Although recognising scent-based branding may appear seemingly progressive, the Draft Manual makes the legal position on smell trademarks unmistakably clear. It notes that although manufacturers increasingly add fragrances to products, from cleaners and cosmetics to magazines, pens, and erasers, consumers still do not identify the commercial origin of goods through scent. More critically, adhering to the Act and the concerned Rules as already explained above, the Manual requires that any trademark must be capable of graphical representation, understood strictly as a representation fixed on paper. Since a smell cannot be placed on paper or visually depicted in a way that captures the mark itself, the Manual concludes that smell marks simply do not meet the threshold for registration. In effect, under the existing framework, olfactory marks are inherently non-registrable, and any acceptance of such a mark without revising the rules would contradict the Manual’s own stated limitations. 

Conclusion

Acceptance of the Sumitomo rose-scented tyre mark is obviously a turning point. It is a message to the world from India that we are willing to  rise above archaic notions of IP and engage in sophisticated brand-building concepts. It brings India more in line with the liberal order of the United States and separates us from the EU’s hard conservatism.  But, the ‘sweet smell’ of this wine may hide the stench of real-life execution! Without a nationally adopted format for graphical portrayal, and robust legislative backing on enforcement, this may be one of those decisions that are more talked about than it is followed. So long as the Trade Marks Act remains silent on olfacto-science, Indian legal history will have only one Sumitomo, albeit a fragrant one.

References

1. Trade Mark Application No. 5860303, Sumitomo Rubber Industries Ltd. (Accepted November 2025).
2. Trade Marks Act, 1999, s. 2(1)(zb) & s. 2(1)(m).
3. In re Clarke, 17 U.S.P.Q.2d 1238 (T.T.A.B. 1990).
4. Sieckmann v. Deutsches Patent- und Markenamt, Case C-273/00 (2002).
5. Trade Marks Registry, Draft Manual of Trade Marks Practice and Procedure (2015).
6. A. Chakraborty, “Law and Odour: Establishing a Case for Olfactory Marks in Indian IP Landscape (Part I),” NLIU Centre for Studies in Intellectual Property Rights (CSIPR) (2024), available at: https://csipr.nliu.ac.in/copyright/law-and-odor-establishing-a-case-for-olfactory-marks-in-indian-ip-landscape-part-i/