India’s First Accepted Olfactory Trademark: Revisiting the Doctrine of Graphical Representation in Indian Trademark Jurisprudence

Introduction

India’s first accepted olfactory trademark is a significant moment in Indian trademark law. The acceptance of Sumitomo Rubber Industries’ rose-scent application raises important questions about graphical representation, distinctiveness, and functionality, as well as the recognition of non-traditional trademarks under the Trade Marks Act, 1999. This article examines the challenges related to olfactory marks, referencing the landmark Sieckmann decision. It also analyzes how the Indian Trade Marks Registry seems to be taking a more flexible approach to trademark protection. The article also examines how sensory branding has become increasingly relevant in modern commerce and highlights the legal difficulties associated with protecting scent-based identifiers. It further considers what the acceptance of olfactory trademarks could mean for the future of trademark law in India. Drawing upon statutory provisions, primary legal materials, and official Trade Marks Registry records, the article analyses India’s first accepted smell mark and explores how it may shape future trademark protection in the country.

Trademark law today is no longer confined to traditional visual indicators such as names, logos, labels, or symbols. As businesses increasingly adopt branding strategies that appeal to different senses, trademark law is gradually being compelled to recognise newer and unconventional forms of commercial identity. The recent acceptance of an olfactory trademark application by the Indian Trade Marks Registry marks a key development in Indian intellectual property law.

The application, submitted by Sumitomo Rubber Industries under Application No. 5860303 in Class 12, describes the mark as a “floral fragrance / smell reminiscent of roses as applied to tyres.” Although the mark has merely been accepted and published in the Trade Marks Journal, and has not yet proceeded to final registration, the decision remains noteworthy because Indian trademark practice has traditionally been reluctant to recognise olfactory marks.

The acceptance of the application brings renewed attention to how graphical representation, distinctiveness, and functionality are to be interpreted under the Trade Marks Act, 1999. More importantly, it shows a gradual shift in Indian trademark law from a strictly visual view of trademarks to a wider understanding of identifiers that signify the source of goods.

Statutory Framework Governing Non-Traditional Trademarks

The legal basis for trademark protection in India is found in the Trade Marks Act, 1999. Section 2(1)(zb) defines a trademark as a mark that can be graphically represented and can distinguish one person’s goods or services from another’s. The definition is sufficiently wide to accommodate non-traditional trademarks, provided the conditions relating to graphical representation and distinctiveness are satisfied.

However, the law does not specifically recognize olfactory marks. Unlike sound marks, which have procedural guidance through the Trade Marks Rules, 2017, there is no similar framework for scent marks. Therefore, the registrability of olfactory trademarks in India relies on interpretative flexibility within the current legal framework.

The main challenge for scent marks has traditionally been the requirement for graphical representation. Since smells are sensory and intangible, capturing them in a clear, exact, and objective form has been difficult in practice legally.

The Graphical Representation Problem

The issue of graphical representation gained international attention in the case of the European Court of Justice in Sieckmann v German Patent and Trade Mark Office. In this case, the applicant sought to register a scent described as “balsamically fruity with a slight hint of cinnamon.” The Court ruled that such descriptions did not meet the graphical representation requirement because they lacked clarity, precision, objectivity, consistency, permanence and intelligibility.

The Sieckmann criteria have since become the standard for non-traditional trademark representation in several jurisdictions. The Court clarified that sensory experiences of a subjective nature cannot receive trademark protection unless they are represented in a manner that clearly and precisely defines the scope of the mark.

This reasoning becomes particularly relevant in the case of olfactory marks, since conventional forms of representation including written descriptions, chemical compositions, and scent samples were considered inadequate for precise trademark identification. As a result, most jurisdictions were hesitant to recognize scent marks except in rare cases.

In this legal background, the Indian Trade Marks Registry’s acceptance of Sumitomo’s application assumes importance. The decision indicates that the Registry may now be taking a less rigid view of graphical representation, particularly in light of changing international approaches and improved methods for identifying scents.

Distinctiveness and Source Identification

The recognition of olfactory marks also raises questions relating to distinctiveness. Trademark law protects marks that help consumers identify the source of goods or services, rather than features that are merely decorative or functional. In the context of scent marks, this issue becomes difficult because consumers usually associate smells with the product itself and not with its commercial origin.

Therefore, an applicant seeking protection for an olfactory mark must establish that the scent is capable of identifying the source of the product and distinguishing it from competing goods in the market. This often requires evidence of acquired distinctiveness or secondary meaning developed through extensive commercial use.

The Sumitomo application becomes important in this context because the floral fragrance does not appear to have any direct connection with the functional purpose of tyres. Therefore, the scent performs a branding role rather than a functional one. This distinction matters because trademark law generally prevents the monopolization of functional product features.

Sensory Branding and Commercial Evolution

The growing focus on scent trademarks shows the increasing use of sensory branding in today's business world. Companies often use multisensory marketing strategies to make their brands stick in consumers’ minds. Many retail stores, luxury hotels, car manufacturers, and cosmetic companies incorporate unique scents into the consumer experience tied to their products or services. In competitive markets where visual advertising is already widespread, using scents helps businesses stand out from others.

The acceptance of India’s first scent trademark application signals a shift in commercial practices. It suggests that trademark law can no longer limit itself to just visual forms of brand identification in response to modern branding strategies.

Enforcement and Evidentiary Challenges

While recognizing scent marks is legally important, it also creates real challenges for enforcement and proof. Unlike traditional trademarks, scent infringement cases cannot rely solely on visual comparisons. Courts may need to use scientific testing, expert opinions, chemical analysis, and consumer perception studies to assess similarities between scents.

Moreover, fragrance perception varies from person to person. Factors such as cultural background, environment, and individual sensory reactions can shape how someone interprets a specific scent. The lack of widely accepted standards for identifying and comparing scents makes legal rulings in these cases more difficult.

Another challenge involves preserving evidence. Unlike visual trademarks, scents can fade, alter, or deteriorate over time. This makes it hard to keep accurate records and ensure consistent evidentiary standards for trademark management.

Conclusion

The acceptance and publication of India’s first scent trademark application represent a significant step in Indian trademark law. It shows a gradual move away from viewing trademarks solely in visual terms, moving toward a broader understanding of commercial identity that includes sensory branding methods.

However, the lack of a clear legal framework for scent marks still raises questions about graphical representation, distinctiveness, functionality, and enforcement standards. The future acceptance of scent trademarks in India will largely depend on how courts interpret the law and how administrative practices develop.

Still, the Sumitomo application indicates that Indian trademark law is starting to adapt to new commercial practices and brand identification methods. Whether this evolution leads to a consistent framework for scent trademarks or stays as an isolated administrative decision will rely on future court rulings and legislative changes.

One thing is clear: India’s first accepted scent trademark application has sparked a crucial conversation about the future of trademark protection in India.

Author: Manasvi Agarwal, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.

Endnotes

1. The Trade Marks Act, 1999, § 2(1)(zb), Government of India, defines a trademark as a mark capable of graphical representation and distinguishing goods or services of one person from those of others.

2. The Trade Marks Rules, 2017, Rule 26, Government of India, providing procedural requirements for the registration of sound marks and other non-traditional trademarks.

3. Sieckmann v Deutsches Patent- und Markenamt (German Patent and Trade Mark Office), Case C-273/00, [2002] ECR I-11737, Court of Justice of the European Union, establishing the criteria of clarity, precision, self-containment, accessibility, intelligibility, durability, and objectivity for graphical representation.

4. World Intellectual Property Organization (WIPO), Standing Committee on the Law of Trademarks, Industrial Designs and Geographical Indications (SCT), Non-Traditional Marks, WIPO Publication, discussing international approaches toward scent and sensory trademarks.

5. Indian Trade Marks Registry, Trade Marks Journal No. 2247, Advertisement of Application No. 5860303 filed by Sumitomo Rubber Industries Ltd., Class 12, describing the mark as “floral fragrance/smell reminiscent of roses as applied to tyres.”

6. Ralf Sieckmann v Deutsches Patent- und Markenamt, Opinion of Advocate General Colomer, Case C-273/00, discussing the limitations of chemical formulas, written descriptions, and scent samples as methods of representing olfactory marks.

7. Graeme B. Dinwoodie & Mark D. Janis, Trademarks and Unfair Competition: Law and Policy (6th ed., Wolters Kluwer, 2022), discussing source identification and distinctiveness requirements for non-traditional trademarks.

8. World Intellectual Property Organization (WIPO), What Can Be a Trademark? (WIPO Intellectual Property Handbook), explaining the protection of non-conventional signs including sounds, smells, colors, and shapes where they function as indicators of commercial origin.

9. Lionel Bently, Brad Sherman, Dev Gangjee & Phillip Johnson, Intellectual Property Law (6th ed., Oxford University Press, 2022), discussing functionality doctrine and the limits of trademark protection for product features that serve utilitarian purposes.

10. European Union Intellectual Property Office (EUIPO), Guidelines for Examination of European Union Trade Marks, Part B, Examination, Section 2, Formalities, discussing post-Sieckmann developments and the treatment of non-traditional marks, including olfactory signs, following the removal of the graphical representation requirement in the EU trademark regime.