Introduction

You probably have a scent that takes you back somewhere. The smell of old books in a library, the distinct fragrance of rain hitting dry earth, or even the specific perfume a loved one used to wear. Scent is powerfully linked to memory and identity. For years, businesses have known this, using specialised scents to make their hotels, shops, and products more memorable. But in the rigid world of law, a brand was something you could see. A logo, a word, a shape. An invisible, fleeting scent had no place on the official Trade Marks Register.

Until now

On 21 November 2025, the Indian Trade Marks Registry did something revolutionary. It granted the nation’s first-ever olfactory, or smell, trademark. The recipient was the Japanese company Sumitomo Rubber Industries, and the mark was for a “floral fragrance/smell reminiscent of roses as applied to tyres.”

This is a massive deal. It’s not just about making car tyres smell a bit nicer. This decision fundamentally changes our understanding of what a brand can be under Indian law. It tears down old barriers and replaces them with a new framework built on modern science. If you run a business or work with brands, or just a normal IP enthusiast you need to understand what just happened, because the rulebook for brand protection has been completely rewritten.

The Old Problem: Why You Couldn’t Register a Smell

To grasp why the Sumitomo decision is so important, you first need to understand why it was almost impossible to register a smell before. The Trade Marks Act, 1999, which governs these matters in India, has two main gatekeepers that kept smells out.

First, there is the graphical representation requirement. The law states that a trademark must be something you can represent visually on paper. This rule exists for a very practical reason. The trademark register is a public document. It tells everyone what marks are protected so they know what not to copy. Imagine you are a competitor. You need to be able to look up a trademark and see its exact boundaries. A logo is easy. You just print the picture. But how do you draw a smell? A simple written description like “smells like roses” is too subjective. Your idea of a rose might be different from mine. This single hurdle stopped countless applications in their tracks.

Second, a mark must be distinctive. This means it has to act as a signpost that points directly to the company that made the product. The mark must identify the source. Here, smells run into two major problems. 

The first is functionality. For a product like a perfume or an air freshener, the scent is its entire purpose. It is the function of the product. Trademark law prevents you from monopolising the functional aspects of a product. If a company could trademark the scent of jasmine for a perfume, it would stop anyone else from selling jasmine perfume. That would be anti-competitive, so the law forbids it.

The other problem is descriptiveness. Think about an application to register the “smell of leather” for a leather handbag. The application would fail because the smell simply describes a natural characteristic of the product. It does not distinguish one company’s leather bag from another’s. All leather bags smell of leather. These principles are why, for decades, the door to registering smells in India remained firmly shut.

The Breakthrough: How Science Unlocked the Law

Sumitomo’s application succeeded because it didn’t just re-argue the old legal points. It brought cutting-edge science to a legal problem. The company’s legal team, along with an appointed amicus curiae (an impartial legal expert assisting the court), Shri Pravin Anand, knew that a simple written description would not be enough. They needed something objective.

The solution came from researchers at the Indian Institute of Information Technology, Allahabad. They developed a method to create a visual fingerprint for the rose scent. Think of it like mixing colours on a computer screen. Any colour can be created by defining the specific values of red, green, and blue. The researchers applied a similar logic to smell. They proposed that any scent can be mapped according to its intensity across seven fundamental smell components: floral, fruity, woody, nutty, pungent, sweet, and minty.

Using this model, they analysed the chemical compounds of the rose scent and plotted the results on a 7-dimensional graph. This created a unique polygon, a radar chart that served as the objective, scientific, and graphical representation of the smell. You now have a picture. A precise and permanent picture of a smell that you can print on the official register.

This was the key that unlocked the first gate. The Controller General agreed that this innovative vector model was clear, precise, and objective. It satisfied the graphical representation requirement in a way no application before it ever had.

With the first hurdle cleared, Sumitomo had to prove the scent was distinctive. This part was much simpler. The connection between roses and tyres is completely arbitrary. There is absolutely no natural reason for a car tyre to smell like a flower. Tyres are expected to smell of rubber. By adding a rose scent, Sumitomo created a characteristic that serves only one purpose, to identify the product as theirs. The Controller’s order highlights this perfectly, stating that the experience would leave a “very strong impression” on a customer because it is in “stark contrast with the smell of rubber”. This arbitrariness is the gold standard for distinctiveness. This is the key lesson. If someone want to protect a non-conventional mark, it must be arbitrary. It must exist only to point back to them.

What This Really Means?

This decision is exciting, but it is not a free-for-all. You cannot rush out and trademark every pleasant smell you can think of. The old rules against functionality and descriptiveness are still very much in place. You will not be able to register the smell of coffee for a coffee shop, the scent of chocolate for a confectioner, or the fragrance of a perfume. Those scents are either descriptive or functional.

But this opens the doors for brands that use arbitrary scents to create a unique customer experience. Consider these examples:

• Hotels: Many luxury hotel chains use a signature scent in their lobbies. That scent is not the product they are selling, but it is a core part of their brand identity. They can now look to protect it.
• Retail Stores: Think of a clothing or electronics store that uses a specific ambient fragrance. That smell becomes associated with the brand. It is now potentially registrable.
• Luxury Products: A maker of high-end stationery could infuse its paper with a unique, non-functional scent like sandalwood and seek to protect it.

The new possibilities for creative branding are immense. However, we have to keep it real. This new path brings new problems, particularly with enforcement. How does someone prove that a competitor is infringing on your smell trademark? If someone think a rival hotel is copying their signature lobby scent, what happens next? A judge cannot simply sniff both and make a ruling.

The process will become highly technical. It will likely involve hiring scent experts and commissioning lab reports to see if the competitor’s scent produces the same 7-dimensional vector. This makes enforcement complex and potentially very expensive. This is a powerful new tool in the branding toolkit, but using it to defend your rights will require significant resources.

The Future Smells Different

The Sumitomo decision marks the moment Indian intellectual property law grew a new sense. It evolved from a system that only understood what it could see to one that can now protect the invisible. By embracing a scientific framework to solve a legal paradox, the Registry has not just followed global trends but has set a new, higher standard for how non-conventional marks can be defined and protected.

The “Order of the Rose,” as some are calling it, is a monumental victory for brand innovation. But it is just the beginning of the story. The real test will come when these new rights are asserted in the marketplace and defended in the courtroom. For now, one thing is clear. The future of branding in India smells very different, and a lot more interesting.