INDIA’S NOD TO A SCENT MARK: UNPACKING THE SUMITOMO BREAKTHROUGH

Komal Tiwari

Rajiv Gandhi School of Intellectual Property Law, IIT Kharagpur

INTRODUCTION

Trademark law provides a system where identification marks of a trade are protected because they symbolise the product, services, its quality, and other attributes to the consumer. Until recent times, these marks were limited to logos, words, combinations of colours, and shapes of goods, among others. These are referred to as the conventional trademarks.

Today, markets have become visually cluttered and highly competitive. Companies are finding it challenging to create a unique mark that represents their business while remaining confined to just logos and words. As consumers, we often see companies using similar names and logos. Therefore, unconventional techniques are emerging that rely on consumer experience to evoke brand recognition. These include sounds, smells, shapes, 3D marks, motion marks, and so on. These marks create a memorable brand association with consumers, even without the consumer seeing the name.

The recent acceptance of an olfactory mark by the Indian Trademark Office is an instance of recognising these trends. The blog unpacks this groundbreaking case.

INDIA SMELLS A NEW PATHWAY

India achieved a historic milestone in trademark on 21^st November, 2025. The Controller General of Patents, Designs, and Trademarks (CGPDT) accepted India’s first olfactory trademark application for advertisement. The application was filed by a Japanese company, Sumitomo Rubber Industries Ltd., manufacturer of Dunlop Tyres. The application sought protection for a scent mark, described as ‘floral fragrance/ smell reminiscent of roses applied to tyres’, for goods falling under Class 12.

THE GRAPHICAL CHALLENGE

At first glance, it appears to be a simple application; however, it had to overcome numerous legal hurdles to achieve success. The first is section 2(1)(zb) of the Trademarks Act, 1999. It defines a trademark as any mark capable of being represented graphically that distinguishes the goods and services of one person from those of another. To graphically represent a smell is the catch here. Conventional trademarks are easy to depict graphically, but how does one do that with a smell, which is highly subjective?

THE SCIENTIFIC SOLUTION

So how did Sumitomo crack this problem? Well, they didn’t give up. Instead, they designed something pretty clever. The company collaborated with researchers from IIIT Allahabad to develop a scientific representation of the rose fragrance. It was essentially a chemical map of the scent, referred to by researchers as a sensory vector or olfactory profile.

Now, this wasn’t just a fancy diagram. They identified the specific volatile organic compounds that comprise the rose scent and measured their strength. You could think of it like a DNA test for the fragrance, except instead of genes, they were looking at chemistry. By converting the intangible smell into hard data, they transformed something that nobody could draw into something that everybody could understand and verify.

What’s interesting is that this approach actually checks all the boxes that courts and IP offices care about. The representation was clear, precise, and objective. It wasn’t based on someone’s personal opinion or subjective impression. It was grounded in actual chemistry. And here’s the thing, it could stay the same forever. That matters because trademark representations need to be consistent and reproducible.

THE DISTINCTIVENESS QUESTION

But here’s where it gets trickier. Even if you can represent the smell graphically, there’s still a bigger question: would people actually think of Sumitomo when they smell a rose on a tyre? That’s what distinctiveness means in trademark lingo.

Sumitomo had two strong arguments here. First, they pointed out that putting a rose fragrance on a tyre is completely arbitrary. There’s nothing natural or expected about it. Nobody thinks of rose scent when they think of tyres. That’s actually a strength in trademark law; arbitrary connections between the mark and the product are considered the strongest kind of trademark.

But here’s the kicker. Sumitomo had been doing this since 1995. That’s nearly three decades of continuously adding this fragrance to their tyres. Generations of customers had grown up associating that rose scent with Dunlop, instantly connecting it to the brand. That kind of long-term use creates what lawyers call acquired distinctiveness. They also pointed out that the UK had registered the exact same smell mark as far back as 1996. If it worked there, it should work in India too.

THE CONTROLLER’S RULING

On November 21st, the Controller General accepted the application. The decision was straightforward but significant. Yes, they said, this mark can be represented graphically. Yes, it’s distinctive. And yes, it functions as a trademark because the rose fragrance doesn’t do anything technical—it just covers up the rubber smell and creates a brand memory. That last part mattered because trademark law generally won’t protect features that give products a technical advantage.

WHAT ACTUALLY HAPPENS NOW

Here’s something that might surprise people who follow IP news. The acceptance doesn’t mean the smell mark is registered. Not yet. Think of acceptance as moving to the next level, not winning the game. The application now gets published in the Trade Marks Journal. Anyone who thinks this registration would hurt their business has four months to file an opposition. If someone challenges it and wins, the whole thing could be rejected. Only after that four-month window passes without opposition, or after opposition is dealt with, does the smell mark actually get registered.

WHAT THIS MEANS FOR BUSINESS

This decision is genuinely significant for the Indian business and branding landscape. For the first time, companies have a legal pathway to protect non-traditional marks. A luxury hotel chain could now protect its signature lobby fragrance. A perfume maker could protect a specific scent combo. A food brand could potentially protect a distinctive aroma. Even beyond smells, sounds, tastes, and textures might eventually get protection too, though that’s still uncertain.

What’s really interesting is that this opens up a whole new way of thinking about brands. In a crowded marketplace where everyone uses similar logos and names, sensory branding has become a genuine competitive advantage. Companies know that creating memorable sensory experiences builds stronger customer relationships. Now they can actually protect those experiences legally.

THE STICKY PARTS

Of course, nothing’s perfect. Smell is subjective. What smells like roses to one person might smell slightly different to another due to genetics, age, or health issues. How do you handle that inconsistency in something that’s supposed to be uniform and registrable? That’s an open question.

There’s also the functionality issue. If a fragrance is inherently desirable and genuinely improves the customer experience, is it more of a feature than a brand identifier? Should companies be able to monopolise something like that through trademark registration? These are legitimate concerns that may arise in opposition proceedings.

Additionally, the trademark office will require personnel who understand olfactory science. That’s not a typical skillset for trademark examiners. If more smell mark applications come in, the office needs resources and expertise to evaluate them properly.

WHAT COMES NEXT

This decision sets a precedent, but doesn’t automatically mean every smell mark application will sail through. Future applicants will need to follow Sumitomo’s example: obtain proper scientific representation, prove distinctiveness, demonstrate that the scent isn’t functional, and prepare for potential opposition.

What makes this genuinely important, though, is that it shows India’s trademark system isn’t frozen in time. It’s adapting to how business actually works in the modern world. Brands don’t just live in logos anymore. They live in experiences. Sumitomo’s rose-scented tyres smell like a Japanese company that’s been around for decades and cares enough to think about the little things. That’s what a trademark actually does: it signals origin and builds trust.

The acceptance of this smell mark is largely about acknowledging that trademark law must remain relevant. India’s trademark office has just demonstrated its ability to handle complexity and innovation while upholding fundamental legal principles. That’s worth noticing. And honestly, it probably won’t be the last we hear about sensory marks in India. This is just the beginning.

REFERENCES

Statutes