Abstract

Non-traditional trademarks are unique and quite different from traditional trademarks. With the rise of technology and AI, brands aim to provide consumers with a deep, enriched, and fulfilling experience with every product or service. To protect this experience or “brand feel”, there is a need to protect non-traditional trademarks that promise to provide such experiences, and to move beyond the traditional ways of registering a mark- to promote innovation, creativity, and provide legal security for non-traditional trademarks.

Introduction

Recently, while browsing the WIPO website, I came across an unusual case: the registration of rose-scented tyres by Sumitomo Rubber Industries. Accepted in November 2025, this trademark marks a new beginning for the acceptance of non-traditional trademarks in India. It marks a rare instance as India goes beyond the conventional spectrum. Now this blog doesn’t “explore” the legal journey of Sumitomo’s scented tyres, but as an instance to point out a broader concern: whether India’s approach to non-traditional trademarks remains overly cautious. This raises a doubt in my mind- Is India’s conservatism justified, or is it limiting the law’s ability to keep pace with modern branding practices and innovation of the day and age?

Understanding Non-Traditional Trademarks

What are Non-traditional Trademarks really? They refer to the marks that do not fit under the conventional scope of words, logos, or combinations; they include sounds, smells, colours, or motion. These marks go beyond logos to create a sensory brand experience. They require proof of distinctiveness or secondary meaning for registration.

Before 1994, the definition of trademark was very general in nature. The TRIPS agreement gave a broader definition, based on the functional nature of marks that can be considered as a trademark. According to the general definition, the unique function of trademarks is also imperative to grant protection.

India on paper vs India in Practice

The Trademarks Act, 1999, influenced by the TRIPS agreement, adopts the inclusive definition of non-traditional trademarks, but only in theory; in practice, the trademark registrar applies stringent standards of graphical representation and distinctiveness, particularly in relation to sensory marks such as smell and taste.

The implementation of such a regime raises questions about India’s progression in the age of startups, with modern branding that provides a deeply embedded digital experience, providing aesthetic value, with other countries like the USA and the EU accepting non-traditional trademarks with secondary functional use. It’s time India also adopts a framework that is inclusive and futuristic.

What India has actually recognised?

India has granted non-traditional trademarks such as the Abstract blue silver colour by Redbull AG in class 32, the colour purple for Cadbury’s Dairy Milk chocolate. The Taj Palace was granted trade protection for its unique architectural design. An example of a motion mark registered in India is Toshiba. All of the above trademarks are easy to represent graphically. The point to note here is that India has very little recognition, it has no ‘taste’ trademarks, and it lacks hologram trademarks as well.

Why Does India Appear Conservative?

1. The graphical representation problem: India follows the traditional requirement that a trademark must be capable of being represented graphically. This whole thing becomes a problem when the Trademark in question is a sound, a smell, or a motion. How do you even map smell or taste graphically? How do you graphically represent the texture of the product? This one requirement blocks many non-traditional marks from even entering the registration process. The European Union allows other forms of representation, such as audio files or written descriptions, but India continues to hold on to this outdated standard.

2. Strict standards: Indian trademark law requires that a mark of something must be able to differentiate the goods or services of one person from those of another. For non-traditional Trademarks, this whole standard is incredibly hard to clear; that a particular shade of red or a specific sound or jingle is distinctively associated with your brand in the minds of Indian consumers requires a lot of evidence, a long usage history. This makes it practically impossible for smaller businesses to even go for the registration.

3.  The fear of monopoly. Allowing one company to own a colour, a sound, or a shape can restrict competition in a way that is harmful to the entire market. The Trademark Registry and courts are cautious about creating these kinds of broad intellectual property monopolies, especially when the legal tools to define their boundaries clearly are still underdeveloped.

Is this Conservatism Justified?

India’s stance is partially understandable, but it is not justified.

1. slows down innovation:  Businesses today are building brands through experiences, not just names. If the legal system does not recognise or protect these brand elements, companies have no incentive to invest in creating unique sensory identities. The law is supposed to encourage creativity not suppress it.

2. Ignores modern branding and advertising realities: In today’s world the Nokia tune, the Netflix ta-dum sound, or the Louboutin red sole are as recognisable as any logo.. An Indian trademark law that refuses to acknowledge non-traditional marks is a law that is out of touch with how branding actually works in the real world.

3.  Indian businesses are at a serious disadvantage: Companies operating outside of India can protect their non-traditional marks in the US, EU, and other jurisdictions but not here at home. This creates an uneven ground where foreign brands operating in India enjoy global protection that Indian brands are denied in their homeland. This is not just unfair, it is  simply bad for the economy.

4. The overemphasis on graphical representation is outdated and unnecessary: The original purpose of graphical representation was to ensure clarity and precision in the register. But with technology, it is now entirely possible to represent a sound through a spectrogram, a colour through a Pantone code, or a motion through a video file. Being attached to old documentation standards in the age of digital filing is holding India back without serving any real legal purpose.

Conclusion

India has become a hub for startups, and emerging trends in branding and marketing are here to change the way a brand is portrayed, to complete the vision of 2047: Viksit Bharat. There is an urgent need to change the way India approaches non-traditional marks to keep up with other countries and grow in IP. Although there are some legitimate concerns around misuse and monopoly, those can be addressed through careful regulation and compliance process, not by shutting the door entirely. India’s conservatism here is not a feature; it’s a gap, a lacuna, one that urgently needs to be filled.

REFERENCES

Unnat P Pandit, ‘India’s First Smell Mark: Sumitomo Rose-Scented Tires’ (World Intellectual Property Organization, 13 February 2026) https://www.wipo.int/en/web/wipo-magazine/articles/indias-first-smell-mark-sumitomo-rose-scented-tires-89623 accessed 3 May 2026.

The Trademarks Act, 1999, section 2 (z)(b)

The TRIPS agreement, Article 15

S.S. Rana & Co, ‘Non-Conventional Trade Marks’ https://ssrana.in/articles/non-conventional-trade-marks/ accessed 3 May 2026.

ILO Consulting, ‘Unconventional/Non-Traditional Trade Marks in India’ (25 March 2020) https://www.iloconsulting.in/knowledge-center/unconventional-non-traditional-trade-marks-india accessed 3 May 2026.

Paridhi Jain, ‘A Perspective on Non-Conventional Trademarks and the Difficulties in Extending IP Protection to Them’ (SCC Online Blog, 16 September 2022) https://www.scconline.com/blog/post/2022/09/16/a-perspective-on-non-conventional-trademarks-and-the-difficulties-in-extending-ip-protection-to-them/ accessed 3 May 2026.

Naomi Jasita Lalloo, ‘Protecting Non-Traditional Trade Marks: A Commercial Perspective’ (Trinity College Law Review) https://trinitycollegelawreview.org/protecting-non-traditional-trade-marks-a-commercial-perspective/ accessed 3 May 2026.