The Development of Non-Traditional Trademarks
Suppose a trademark is not an emblem, a brand name, or even a logo but a sound, color, or fragrance of roses on tyres? With the ever-changing concept of trademarking, the need for non-conformity has led companies to identify themselves with such trademark forms. The following article highlights the development of non-conventional trademarks in India with a detailed look at sounds, colors, shapes, and smell trademarks.
Introduction
Suppose you are manufacturing a car tyre and want to register a trademark. But there was one problem. There was nothing different in your tire’s design. There was no unique logo, shape or design to make it stand out from every other tyre on the market.
Can you trademark?
Probably not.
But what if you add a scent , such as the smell of roses? Say, the scent of roses. Can I get a trademark?
Yes, surprisingly.
And you might be asking yourself how, the answer is Sumitomo 2025, which we will talk about later in this blog.
This is an example of a non-traditional trademark. Such marks have been created due to globalization, increased competition and the need for businesses to differentiate themselves. But before we get to that, let’s look at what are trademarks.
What are trademarks?
Trademarks are ancient. In India, people used to mark their own names or symbols to identify the products. In short they wanted to say: This product is mine.
The idea evolved slowly into the idea of trademarks in the law of intellectual property. Trademarks are an important aspect of intellectual property. They help consumers to differentiate two or more similar products and to identify the original product. A trademark is any sign or any combination of signs capable of distinguishing the goods and/or services of one undertaking from those of another.
This is a very simplified definition but it is the essence of trademarks:
In general, a trademark must meet two conditions for its existence. First, it needs to be unique. Second, it must not be deceptive.
1. Originality
Distinctiveness is the capacity of a mark that can help in identifying the source of goods or services and differentiate them from those of other goods or services.
Weakest Generic Marks: These are generic names of products. For example, the word “Apple” refers to a real apple. Such marks can never be trademarked because they are simply describing what the product is.
Descriptive marks:These directly describe a product’s features or quality. Like “Sweet and Creamy” for ice cream.
Suggestive marks : They are indirect measures of product qualities. Like “Airbus” for a plane company .
Arbitrary and Fanciful (Most Powerful): These are the strongest of trademarks. Arbitrary marks are ordinary words in totally unrelated contexts, like “Apple” for computers. Fanciful. These are arbitrary words, like “Kodak”
2. Non deceptive
A trademark shall not be misleading or deceptive as to the nature, quality, or geographic origin of any goods or services.
Suppose a product is being sold under the name “Himalayan Pure” and the product does not come from the Himalayas; consumers are then being cheated.
Again, the trademark can’t be registered where it is deceptively similar to another trademark registered for the same products.
Traditionally, trademarks were typically words, logos or symbols. Like, for example, Nike’s logo or Apple’s logo for electronic products.
But with the changing times and increasing competition in business, non-traditional or non-conventional trademarks came into being.
Trademarks which do not fall under the traditional category of trademarks are known as non-traditional trademarks. It could be a smell, a sound, a three-dimensional form, a color, a texture or something else altogether.
In India, distinctiveness and the ability to represent graphically are sufficient.
Trade marks in India
Section 2(1)(zb) of the Trademarks Act, 1999 states that a “trademark” is a mark which is capable of being represented graphically and is capable of distinguishing the goods or services of one person from those of others.
So what non traditional trademarks in India include
Sound Marks:
Sound marks are musical notes, jingles, tones and sounds that are used to identify a brand. A sound mark generally should not exceed thirty seconds in length, be capable of graphical representation and be distinctive in order to be registered.
For instance the Nokia ringtone, the Yahoo yodel and Netflix’s famous “Ta-Dum.” Yodel of Yahoo (2008) – First sound trademark in India. This filing includes an MP3 version of the yodeling sounds along with notations of the music. Notations are basically written in staff to show how long the sound should last. The important point is that sound has to be registered in the form of audio as well as notations.
ICICI Bank Jingle One of the first sound trademarks used by an Indian company. The jingle of this bank was registered considering the fact that people in India have started to associate that particular tune with the banking services of ICICI.
The following types of sound trademarks cannot be registered:
a) Simple one or two notes tunes
b) Music from nursery rhymes
c) Sounds which are well known for their entertainment purposes.
Colour Signatures
Colour marks can be single colour or combination colour.
Combination-colour marks are more easily acquired because consumers associate a certain brand with a certain colour combination.
Single colour trademarks are much harder to get because colours are generally considered to be common to trade. A unique and unusual colour may be protected.
A good example of a trademark is the color red of the Christian Louboutin shoe soles. Christian Louboutin SAS v. Nakul Bajaj & Ors., CS(COMM) 344/2018, Delhi High Court.There’s no reason why a shoe sole should be of a particular color.
And that is precisely what makes it so special.
Colgate Palmolive v. Anchor Health & Beauty Care, Delhi HC (2003) – The trademark registration of Colgate consisting of its color stripes has been recognized as having secondary meaning amongst consumers in India. The courts have protected this trademark right in respect of such use of color stripes . In this regard, a combination of color is easier to protect as per the Act as compared to a single color.
Form Marks
Shape trademarks are the unique three-dimensional shape or packaging of a product. The Coca-Cola bottle is a well-known example.
The problem with shape trademarks is that consumers do not naturally associate shape with a trademark. However, consumers do not think of shape as a trademark, so examiners need good proof that consumers identify a product from its shape alone.
The shape must not be deceptive and must not be purely functional .
Odor Marks
Smell marks are rare; smells are difficult to distinguish and to represent graphically. But a strange smell can be special.
Like a tyre smells of dried roses for example.
Tyres don’t normally smell like roses. Tyres don’t normally smell of roses, so the smell can tell you where the product came from.
Historic 2025 Breakthrough
On 21 November 2025, the Indian Trade Marks Registry granted approval for the country’s first ever olfactory trademark. This trademark was owned by Sumitomo Rubber Industries. It involved the use of a floral scent resembling rose on tyres.
The trademark was filed in March 2024. It had faced opposition on the basis of Sections 9(1)(a) and 2(1)(zb) of the Trade Marks Act, 1999 since the smell in question did not have distinctiveness and adequate graphical representation.
The problem of graphical representation was dealt with by the presentation of scientific evidence, which included a seven dimensional model of smell created by scientists from IIIT Allahabad. The seven dimensional model of smell included the following dimensions for the smell: floral, fruity, woody, nutty, pungentsweet, and minty.
There have been no litigation precedents in India concerning smell trademark infringement so far.
Conclusion
Smell trademarks keep encountering issues. The perception of a particular smell can vary based on temperature, humidity, age, gender, genes, and other environmental factors. And honestly differentiating between fragrances could be very difficult and consumers can find it confusing unless it’s very strange like the fragrance of dried roses in tyre.
These were some of the examples of non-traditional trademarks. Due to the wide scope of trademark definitions under Indian law, there could actually be many types of non-traditional trademarks in the coming years.
From the stamping of names on merchandise in the ancient markets to the scent of rose on automobile tires, there has been a tremendous evolution in trademarks. However, the main function has remained the same.
References
Rachna R. Kurup and Nimita Aksa Pradeep, Non-Traditional Trademarks in India, CNLU L.J. (2025), https://www.cnlu.ac.in/wp-content/uploads/2025/04/9-Rachna-R-Kurup-and-Nimita-Aksa-Pradeep-1. pdf.
Christian Louboutin SAS v. Nakul Bajaj and Ors., CS(COMM) 344/2018 (Delhi H.C. 2018), https://indiankanoon.org/doc/1741869/.
Colgate Palmolive Co. v. Anchor Health and Beauty Care Pvt. Ltd., (2003) (Delhi H.C.), https://indiankanoon.org/doc/1306228/.
Trade Marks Act, No. 47 of 1999, sec2(1)(zb) (India).
Non-Traditional Marks, Int’l Trademark Ass’n, https://www.inta.org/topics/non-traditional-marks Depenning and Depenning, Unconventional Trademarks: Evolution, https://depenning.com/blog/unconventional-trademarks-evolution
Non-Traditional Trademarks, Manupatra, https://docs.manupatra.in/newsline/articles/Upload/0BA24F3D-DE7F-4172-9CBF-E9B72391C5CC.pdf