India's First Olfactory Trademark: Rose-Scented Tyres and the Future of Non-Traditional Marks

1. Introduction: The Historic 21 November 2025 Order

The Indian intellectual property rights legal framework has undergone a fundamental shift in its structure with the formal acceptance of the country's first-ever trademark for an olfactory mark on November 21, 2025.[1] The order was issued by the Controller General of Patents, Designs, and Trade Marks (CGPDTM) for a rose-scented tyre designed by Japanese tyre producer Sumitomo Rubber Industries.[2]

For several decades, the registration of scents has remained merely a hypothetical possibility under the Trade Marks Act, 1999[3]. However, obstacles such as the need to represent the scent in graphical form have thwarted all efforts to establish formal protection of scents. Sumitomo breaks new ground in bridging the gap between subjective sensory perception and objective scientific reality by its innovative 7-dimensional vector model, the Indian Trade Marks Registry has not only modernised its domestic practice but has also provided a sophisticated answer to a global legal impasse which has been in a state of deadlock since the turn of the millennium.

2. Background: Non-Traditional Marks in India

The legal basis for the registration of unconventional marks like scents, sounds, and colors is based on the broad definitions provided in the Trade Marks Act, 1999. As provided in Section 2(1)(m)[4], "mark" includes any device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging, or combination of colors. However, olfactory markers are not specifically mentioned in this section; nonetheless, it is deemed that the definitions provided are non-specific and encompass all kinds of sensory markers that satisfy the secondary criterion of being a "trade mark."

Section 2(1)(zb)[5] of the Act defines a trade mark as a mark which is capable of being represented graphically and which indicates the goods or services of one person from those of others. The requirement of graphical representation and the requirement of being distinctive have been the gatekeeping criteria for trade marks.

The development of the practice in respect of non-traditional marks started with the registration of sound marks, as the Yahoo yodel and the ICICI Bank jingle were successfully registered by the furnishing of musical notation in the form of graphical representation.[6] However, with respect to odours, the lack of a notation system similar to music has meant a reluctance on the part of the Registry to entertain applications in this respect.[7] The Sumitomo decision represents the first time that the Registry has departed from their normal conservatism in recognising that scientific modelling can satisfy legal requirements of visual perceptibility[8].

 

3. The Sumitomo Case: Application No. 5860303

The Sumitomo Rubber Industries Ltd. case is an example of the culmination of an exhaustive scientific and legal process that began with an application filed on the 23rd of March, 2023[9]. The Japanese company was seeking to protect its claim to a "floral fragrance/smell reminiscent of roses as applied to tyres" under Class 12, which comprises "vehicles and apparatus for transport." The application was filed on a "proposed to be used" basis in India in line with the company’s tradition of using the fragrance since 1995.

The Registry's initial examination report, dated August 4, 2023, raised two objections based on sections 9(1)(a)[10] and 2(1)(zb)[11]. The objections claimed that the mark was not inherently distinctive and that a scent by its very nature could not be represented graphically in a clear and precise manner.[12] The response by Sumitomo, dated September 27, 2023, marked the beginning of a new era in a series of hearings and written submissions to redefine the limits of IP[13].

In recognising the “rarest of the rare” nature of the application and the lack of domestic precedent, the CGPDTM appointed Pravin Anand, the Managing Partner of the law firm of Anand and Anand, as amicus curiae to assist the court with impartial guidance with regard to comparative jurisprudence and the adoption of scientific methodologies.[14] His amicus submissions provided the Registry with a list of 26 successful global smell mark registrations and introduced the technical framework that would eventually secure the Sumitomo registration.

4. The Breakthrough: The IIIT Allahabad 7D Olfactory Model

The hallmark of the Sumitomo decision is the adoption of a seven-dimensional (7D) olfactory vector model[15] developed by a team of researchers from the Indian Institute of Information Technology (IIIT) Allahabad specifically Professor Pritish Varadwaj, Professor Neetesh Purohit, and Dr. Suneet Yadav. This model turns the subjective experience of the scent into a quantifiable objective geometric form.[16]

The model works by representing the rose scent as a vector in high-dimensional space and then mapping it. Each dimension represents one of the seven "basic smell families": floral, fruity, woody, nutty, pungent, sweet, and minty.[17] As far as methodology is concerned, the model is based on supervised machine learning, which entails finding the top contributing volatile organic compounds and then using algebraic averaging to arrive at a stable and long-lasting graphical profile, which is then plotted in a chart known as a "spider chart" to arrive at the precise metes and bounds of the protection.[18] The CGPDTM noted the following: the different smells are activated in the order of their intensity, the most intense of which was floral, which was the dominant smell for consumer recall. The model was clear, precise, self-contained, intelligible, and objective, thus meeting the strict legal criteria for graphical representation[19].

Why does the rose scent on a tyre work as a distinctive mark? 

Tyres are also identified by their distinctive and pungent smell of rubber. The CGPDTM identified that the "sudden and unexpected perception of roses" in this case results in an immediate and unmistakable identification with a single commercial source. Olfactory signals are also more effective memory triggers than visual signals, and this "neurological advantage" is what brands seek to leverage in creating stronger emotional connections with their target market.[20]

 

5. Legal Analysis: Cracking the Sieckmann Trap

The decision by the Indian Registry is a direct response to the global stalemate caused by the European Court of Justice (ECJ) in the landmark case of Sieckmann v. Deutsches Patent- und Markenamt, decided in 2002.[21] Ralf Sieckmann sought to register the scent of 'balsamically fruity' for the chemical compound methyl cinnamate, providing the ECJ with a chemical formula, written description, and physical sample.[22] The ECJ rejected all three, however, on the grounds that the chemical formula represented the chemical, not the smell, the written description was subjective, and the sample was likely to deteriorate[23].

The ECJ laid down that for a non-visual mark to be registered, it must be represented in a manner that is “clear (not liable to ambiguity), precise (carrying a specific idea), self-contained (not requiring reference to anything outside itself), easily accessible (within public reach), intelligible (capable of being understood by the average person), durable (not liable to deterioration), and objective (not susceptible to being perceived subjectively).[24]”

This set up a "trap" that essentially brought all scent registrations in Europe to a standstill for many years.[25] The Indian solution to this problem, the "Rose Radar," is able to circumvent this "trap" because it is able to utilize data visualisation that is both objective and long-lasting and yet intelligible to the Registry as a map of the protected mark[26].

A comparative study of the global approaches adopted will reveal how India has carved out its own place:

Jurisdiction	Primary Standard	Key Precedents
India (2025)[27]	Scientific 7D Vector Model	Sumitomo Rubber (TM 5860303)
United Kingdom[28]	Verbal Description (historically)	Sumitomo's first rose-scented tyre (1996)
United States[29]	Non-functionality & Distinctiveness	In re Clarke (plumeria thread); Hasbro (Play-Doh)
European Union[30]	Sieckmann Criteria	Sieckmann (2002); Regulation 2017/1001
Australia[31]	Explicitly allowed but high burden	Australian Trademark Act

The U.S. approach focuses on the "functionality doctrine," ensuring that a scent is not essential to the product's use  a plumeria scent for yarn is registrable, but a lemon scent for a household cleaner is functional (as it masks odours) and therefore ineligible.[32] The decision of the Indian court in the case of Sumitomo also fits into this context, as the court upheld the arbitrary nature of the smell and the fact that it does not enhance the safety of the tyre[33].

 

6. Enforcement Challenges: The "Toothless White Paper" Concern

Despite the success in registration, legal experts have identified serious concerns with respect to enforcement in the country. The shift from the 7D scientific vector to the consumer experience is a complex doctrinal leap.[34]

Scent perception is a subjective experience that is also affected by temperature, humidity, wind conditions, and age of product.[35] The scent of a tyre could be different in Mumbai during the monsoon season compared to Rajasthan during a hot summer. Moreover, human factors such as anosmia – loss of smell – that have been exacerbated by the COVID-19 pandemic also add a layer of complexity to "likelihood of confusion."[36]

For instance, in the case of 'smell-like' perfumes, such as the case in the EU, where L'Oral was sued by Bellure[37], the same is not possible in India, where Section 29(8)[38] prohibits the advertisement of the trademark, which takes unfair advantage of the reputation of the trademark[39]. For instance, it will be extremely difficult for the judges to decide whether the competitor's 'floral-scented' tyre is infringing on the 'rose-scented' tyre[40], especially since they will not be able to distinguish the complex chemical composition. Scholars have gone so far as to say that the registration is akin to a 'toothless white paper,' where the Registry must maintain a high level of 'distinctiveness' to avoid 'frivolous or opportunistic registrations' by businesses attempting to monopolise scents[41].

7. Broader Impact: What This Opens for Indian Brands

The landmark case of Sumitomo is a watershed moment in the extension of the scope of the subject matter in Indian law. The signature scents in luxury hotels or fashion boutiques can be protected as identifiers of commercial origin, and brands can stop competitors from copying the "sensory experience" associated with their level of service.

While a smell that is inherent in the product itself, such as perfume, cannot be trademarked, the smell of packaging elements can be. For instance, automotive brands may wish to trademark their "signature interior scent," and food brands may wish to trademark the distinctive smell of an unscented packaging component.

However, experts such as Dr. Zakir Thomas caution us to remember that "a novel step needn't always be the right one." There are also anti-competitive worries about the monopolistic control of the use of everyday items such as the smell of flowers or the smell of roses. If the same smell is used in fountain pen ink, envelopes, fabric, or furniture, will the market become a "cluttered olfactory landscape" in which consumers are confused rather than helped? The Registry must strike the right balance in celebrating this milestone mark with evidence-based policy-making to avoid the "slippery slope" of frivolous sensory monopolies.

 

8. Conclusion: Game-Changer or Just Symbolic?

The registration of India's first olfactory trademark—the rose-scented tyre—is far from a curious footnote in the margins of trademark law. Rather, it marks an important doctrinal shift. In approving a scientific vector model, the CGPDTM has effectively indicated its willingness for Indian IP law to enter the complex, nuanced, sensory world of the modern commercial universe. The 7D model, created at IIIT Allahabad, offers a lasting solution to the Sieckmann test, translating a subjective experience into objective fact.

For businesses, the message is clear: sensory identity is now registrable in one of the world’s largest consumer markets. However, for the legal system, it seems that the real battle is only beginning. Proving "likelihood of confusion" in a world where scents are subjectively experienced, dealing with the risk of anti-competitive monopolies, and maintaining that functional utility is the outer limit of trademark protection will be the defining battles in IP law in 2026 and beyond.

Author: Archit Tiwari, 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.

References: 

1.     Controller General of Patents, Designs and Trade Marks, Order in Trade Mark Application No. 5860303 (Nov. 21, 2025).

2.     Trade Marks Act, 1999, No. 47, Acts of Parliament, 1999 (India), §§ 2(1)(m), 2(1)(zb), 9(1)(a), 29(2), 29(8).

3.     Case C-273/00, Ralf Sieckmann v. Deutsches Patent- und Markenamt, 2002 E.C.R. I-11737 (ECJ Dec. 12, 2002).

4.     Case C-487/07, L'Oréal SA v. Bellure NV, 2009 E.C.R. I-5185 (ECJ June 18, 2009).

5.     Regulation 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union Trade Mark, art. 4, 2017 O.J. (L 154) 1 (EU).

6.     Council Directive 2006/114/EC Concerning Misleading and Comparative Advertising, art. 4(g), 2006 O.J. (L 376) 21 (EU).

7.     In re Celia Clarke, dba Clarke's Osewez, 17 U.S.P.Q.2d 1238 (T.T.A.B. 1990).

8.     Hasbro, Inc., U.S. Trademark Reg. No. 5,467,089 (registered May 15, 2018).

9.     U.K. Trade Mark Reg. No. UK00002001416 (filed Oct. 31, 1994; registered 1996).

10.  Trade Marks Act 1995 (Cth) (Austl.), §§ 6, 17, 40.

11.  Renaissance Hotel Holdings Inc. v. B. Vijaya Sai & Ors., Civil Appeal No. 404 of 2022 (S.C. India Jan. 19, 2022).

12.  Varadwaj, Pritish, Neetesh Purohit & Suneet Yadav, Scientific Graphical Representation of Rose-Like Smell: Seven-Dimensional Olfactory Vector Model, Indian Institute of Information Technology Allahabad (Sept. 13, 2024).

13.  Pandit, Unnat P., "India's First Smell Mark: Sumitomo Rose-Scented Tires," WIPO Magazine (2025). https://www.wipo.int/en/web/wipo-magazine/articles/indias-first-smell-mark-sumitomo-rose-scented-tires-89623 

14.  Goswami, Tanishka, "The Scent of the Sumitomo Trademark: What Is the Celebration About?," SpicyIP (Nov. 26, 2025). https://spicyip.com/2025/11/the-scent-of-the-sumitomo-trademark-what-is-the-celebration-about.html 

15.  Dhonchak, Anupriya, "Policy Questions Regarding Protection of Scent Marks," SpicyIP (Mar. 16, 2020). https://spicyip.com/2020/03/policy-questions-regarding-protection-of-scent-marks.html 

16.  Anand & Anand, "Scenting the Future: How India's First Smell Mark Application Aligns with Global Jurisprudence," Legal 500 (2025). https://www.legal500.com/developments/thought-leadership/scenting-the-future-how-indias-first-smell-mark-application-aligns-with-global-jurisprudence/ 

17.  Anand & Anand, "A Landmark First for Indian Trademark Law" (Nov. 2025). https://www.anandandanand.com/news-insights/a-landmark-first-for-indian-trademark-law/ 

18.  Cyril Amarchand Mangaldas, "CAM Acts as Indian Legal Counsel to Sumitomo Rubber in India's First Accepted Olfactory Mark," SCC Online (Nov. 24, 2025). https://www.scconline.com/blog/post/2025/11/24/cam-advises-sumitomo-rubber-first-smell-mark-india-2025/ 

19.  Nadajoshi, Ananya, "Order of the Rose: Sets Olfactory Trademark Standards," BananaIP Intellepedia (Nov. 27, 2025). https://www.bananaip.com/intellepedia/olfactory-trademark-india-rose-scented-tyres-legal-history/ 

20.  Saniasiaya, J., M.A. Islam & B. Abdullah, "Prevalence of Olfactory Dysfunction in Coronavirus Disease 2019 (COVID-19): A Meta-Analysis of 27,492 Patients," 131 Laryngoscope 865 (2021).

21.  McWilliams, Michael P. et al., "Recovery from COVID-19 Smell Loss: Two Years of Follow Up," 43 American Journal of Otolaryngology, art. 103607 (2022).

22.  Upscale Legal, "Sounds and Smells Trademarks — Pushing the Boundaries of What Can and Cannot Be Trademarked." https://upscalelegal.com/sounds-and-smells-trademarks-pushing-the-boundaries-of-what-can-and-cannot-be-trademarked/ 

23.  TaxTMI, "Olfactory (Smell) Trademarks in India: Expanding the Contours of Non-Conventional Marks under the Trade Marks Act, 1999." https://www.taxtmi.com/article/detailed?id=15815 

24.  Hasan & Singh, "Beyond Logos and Words: The Legal Journey of India's First Rose-Scented Tyre Mark." https://hasanandsingh.com/articleDetail.php?Name=beyond-logos-and-words-the-legal-journey-of-india-s-first-rose-scented-tyre-mark 

25.  Chambers & Partners, "India's First Smell Trademark: CGPDTM Accepts Rose Fragrance for Tyres" (Nov. 25, 2025). https://chambers.com/articles/india-s-first-smell-trademark-cgpdtm-accepts-rose-fragrance-for-tyres 

26.  Trademark Manual of Examining Procedure § 1202.13 (U.S. Patent & Trademark Office, Oct. 2024 ed.).

[1] Controller General of Patents, Designs and Trade Marks, Order in Trade Mark Application No. 5860303 (Nov. 21, 2025)

[2] Controller General of Patents, Designs and Trade Marks, Order in Trade Mark Application No. 5860303 (Nov. 21, 2025)

[3] Trade Marks Act, 1999, No. 47, Acts of Parliament, 1999 (India)

[4] Trade Marks Act, 1999, § 2(1)(m), No. 47, Acts of Parliament, 1999 (India)

[5] Trade Marks Act, 1999, § 2(1)(zb), No. 47, Acts of Parliament, 1999 (India)

[6] See Upscale Legal, Sounds and Smells Trademarks — Pushing the Boundaries of What Can and Cannot Be Trademarked, https://upscalelegal.com/sounds-and-smells-trademarks-pushing-the-boundaries-of-what-can-and-cannot-be-trademarked/ (last visited Feb. 17, 2026)

[7] Id.; see also Olfactory (Smell) Trademarks in India: Expanding the Contours of Non-Conventional Marks under the Trade Marks Act, 1999, TaxTMI, https://www.taxtmi.com/article/detailed?id=15815 (last visited Feb. 17, 2026)

[8] See Sonis Vision, Sumitomo Rubber's Rose Smell Trademark: India's First Olfactory Mark Explained, https://www.sonisvision.in/blogs/sumitomo-rubbers-rose-smell-trademark-indias-first-olfactory-mark-explained (last visited Feb. 17, 2026); see also WIPO, India's First Smell Mark: Sumitomo Rose-Scented Tires, https://www.wipo.int/en/web/wipo-magazine/articles/indias-first-smell-mark-sumitomo-rose-scented-tires-89623 (last visited Feb. 17, 2026)

[9] See Cyril Amarchand Mangaldas, CAM Acts as Indian Legal Counsel to Sumitomo Rubber in India's First Accepted Olfactory Mark, SCC Online (Nov. 24, 2025), https://www.scconline.com/blog/post/2025/11/24/cam-advises-sumitomo-rubber-first-smell-mark-india-2025/; see also Anand & Anand, Scenting the Future: How India's First Smell Mark Application Aligns with Global Jurisprudence, Legal 500 (2025), https://www.legal500.com/developments/thought-leadership/scenting-the-future-how-indias-first-smell-mark-application-aligns-with-global-jurisprudence/

[10] Trade Marks Act, 1999, § 9(1)(a) (India)

[11] Trade Marks Act, 1999, § 2(1)(zb)

[12] See Anand & Anand, A Landmark First for Indian Trademark Law (Nov. 2025), https://www.anandandanand.com/news-insights/a-landmark-first-for-indian-trademark-law/; accord Cyril Amarchand Mangaldas, supra note 1

[13] See Cyril Amarchand Mangaldas, supra note 1; see also Hasan & Singh, Beyond Logos and Words: The Legal Journey of India's First Rose-Scented Tyre Mark, https://hasanandsingh.com/articleDetail.php?Name=beyond-logos-and-words-the-legal-journey-of-india-s-first-rose-scented-tyre-mark (last visited Feb. 17, 2026)

[14] See Anand & Anand, Scenting the Future: How India's First Smell Mark Application Aligns with Global Jurisprudence, Asialaw (2025), https://www.asialaw.com/NewsAndAnalysis/scenting-the-future-how-indias-first-smell-mark-application-aligns-with-global/Index/2475; see also Chambers & Partners, India's First Smell Trademark: CGPDTM Accepts Rose Fragrance for Tyres (Nov. 25, 2025), https://chambers.com/articles/india-s-first-smell-trademark-cgpdtm-accepts-rose-fragrance-for-tyres.

[15] Controller Gen. of Patents, Designs & Trade Marks (CGPDTM), Order No. TMR/DEL/SCH/2025/, In re Application No. 5860303 of Sumitomo Rubber Indus. Ltd. (Floral Fragrance/Smell Reminiscent of Roses as Applied to Tyres, Class 12) (Nov. 21, 2025) [hereinafter Sumitomo Order], https://ipindia.gov.in/writereaddata/Portal/IPOPublication/1_69_1/olfactory-mark-order-sumitomo-2025.pdf

[16] Pritish Varadwaj, Neetesh Purohit & Suneet Yadav, Indian Inst. of Info. Tech. Allahabad, Scientific Graphical Representation of Rose-Like Smell: Seven-Dimensional Olfactory Vector Model (Sept. 13, 2024) (submitted as evidence in Sumitomo Order, supra note 1); see also Sumitomo Order, supra note 1, at ¶¶ 18–22 (adopting the IIIT Allahabad model and describing its methodology)

[17] Sumitomo Order, supra note 1, at Annexure A ("A complex mixture of volatile organic compounds released by the petals interact with our olfactory receptors, creating a rose-like smell. Using the technology developed at IIIT Allahabad, this rose-like smell is graphically presented above as a vector in the 7-dimensional space wherein each dimension is defined as one of the 7 fundamental smells, namely floral, fruity, woody, nutty, pungent, sweet, and minty.")

[18] Id. at Annexure A ("The Methodology: Over and above our primary research . . . based upon supervised machine learning, we have done additional processing and analysis for identifying the top 5 contributing compounds, and an algebraic average of vectors is done to arrive at the above graphical representation.")

[19] Sumitomo Order, supra note 1, at ¶ 26; see Case C-273/00, Ralf Sieckmann v. Deutsches Patent- und Markenamt, 2002 E.C.R. I-11737, ¶ 55 (ECJ Dec. 12, 2002)

[20] Unnat P. Pandit, India's First Smell Mark: Sumitomo Rose-Scented Tires, WIPO Mag. (2025), https://www.wipo.int/en/web/wipo-magazine/articles/indias-first-smell-mark-sumitomo-rose-scented-tires-89623 ("In the consumer's mind, smell is frequently more persistent and emotionally resonant than sight and sound."); accord Sumitomo Order, supra note 1, at ¶ 35

[21] Case C-273/00, Ralf Sieckmann v. Deutsches Patent- und Markenamt, 2002 E.C.R. I-11737 (ECJ Dec. 12, 2002), ECLI:EU:C:2002:748

[22] Id. ¶ 3 (noting the applicant described the scent as "balsamically fruity with a slight hint of cinnamon" and filed the application in respect of services in Classes 35, 41, and 42 of the Nice Classification)

[23] Id. ¶¶ 68–73 (holding that a chemical formula "does not represent the odour of a substance," that a written description is insufficiently clear, precise, and objective, and that a physical sample "does not constitute a graphic representation" and is not sufficiently stable or durable)

[24] Id. ¶ 55 ("[T]he graphic representation . . . must be clear, precise, self-contained, easily accessible, intelligible, durable and objective.")

[25] See Sumitomo Order, supra note 1, ¶¶ 12–16 (discussing how the Sieckmann criteria created a de facto barrier to olfactory trademark registration across Europe and the broader global stalemate in scent mark registrations post-2002); see also Regulation 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union Trade Mark, art. 4, 2017 O.J. (L 154) 1 (EU) (replacing the strict graphical representation requirement with a standard demanding only that marks be "represented on the Register . . . in a manner which enables the competent authorities and the public to determine the clear and precise subject matter of the protection afforded" but maintaining the functional Sieckmann criteria in Recital 9)

[26] Sumitomo Order, supra note 1, ¶ 22; cf. Varadwaj et al., supra note 2 (explaining the seven-dimensional spider-chart model that served as the graphical representation satisfying the Sieckmann criteria within Indian law)

[27] Sumitomo Order, supra note 1 (TM Application No. 5860303, CGPDTM, Nov. 21, 2025) (adopting the seven-dimensional olfactory vector model and accepting the mark on the Principal Register)

[28] U.K. Trade Mark Reg. No. UK00002001416 (filed Oct. 31, 1994; registered 1996) (first smell mark registered in the UK; same Sumitomo rose-scented tyre mark; lapsed after the Sieckmann criteria precluded renewal). See Sieckmann, supra note 8

[29] In re Celia Clarke, dba Clarke's Osewez, 17 U.S.P.Q.2d 1238 (T.T.A.B. 1990) (first scent trademark granted anywhere in the world, for "a high impact, fresh, floral fragrance reminiscent of Plumeria blossoms" applied to sewing thread and embroidery yarn); Hasbro, Inc., U.S. Trademark Reg. No. 5,467,089 (registered May 15, 2018) (Play-Doh modeling compound scent described as "a sweet, slightly musky, vanilla fragrance, with slight overtones of cherry, combined with the smell of a salted, wheat-based dough")

[30] Sieckmann, supra note 8; Regulation 2017/1001, supra note 12, art. 4

[31] Trade Marks Act 1995 (Cth) §§ 6, 17, 40 (Austl.)

[32] In re Clarke, 17 U.S.P.Q.2d at 1240 (reasoning that because plumeria scent "is not the natural or inherent feature of the goods and does not provide any utilitarian advantage," it is registrable under § 2(f) of the Lanham Act, 15 U.S.C. § 1052(f) (2018)); see also Trademark Manual of Examining Procedure § 1202.13 (U.S. Patent & Trademark Office, Oct. 2024 ed.) (setting out non-functionality and distinctiveness requirements for scent marks)

[33] Sumitomo Order, supra note 1, ¶¶ 30–33 (finding that the rose fragrance "bears no logical, functional, or natural connection to tyres" and is not essential to the use or purpose of the product, thereby satisfying the non-functionality requirement by analogy to the U.S. approach, and upholding the arbitrary and inherently distinctive nature of the mark)

[34] See Tanishka Goswami, The Scent of the Sumitomo Trademark: What Is the Celebration About?, SpicyIP (Nov. 26, 2025), https://spicyip.com/2025/11/the-scent-of-the-sumitomo-trademark-what-is-the-celebration-about.html

[35] see also Anupriya Dhonchak, Policy Questions Regarding Protection of Scent Marks, SpicyIP (Mar. 16, 2020), https://spicyip.com/2020/03/policy-questions-regarding-protection-of-scent-marks.html

[36] Amanda Stafford et al., supra note 18 ("Additionally, a portion of the population have some form of anosmia, meaning that they lack the ability to discriminate between different aromas or ranges of smells. These variables create significant obstacles to making a meaningful comparison of one scent to another, making the outcome of a 'likelihood of confusion' analysis impossible to predict."); see also J. Saniasiaya, M.A. Islam & B. Abdullah, Prevalence of Olfactory Dysfunction in Coronavirus Disease 2019 (COVID-19): A Meta-Analysis of 27,492 Patients, 131 Laryngoscope 865, 865–72 (2021) (reporting approximately 50% prevalence of olfactory loss across COVID-19 patients in a systematic meta-analysis); Michael P. McWilliams et al., Recovery from COVID-19 Smell Loss: Two Years of Follow Up, 43 Am. J. Otolaryngology art. 103607, at 1–2 (2022) (finding that among subjects with at least two years of follow-up, only 38.2% reported full recovery of smell and 7.5% reported no recovery at all)

[37] Case C-487/07, L'Oréal SA v. Bellure NV, 2009 E.C.R. I-5185 (ECJ June 18, 2009), ECLI:EU:C:2009:378

[38] Trade Marks Act, 1999, § 29(8), No. 47 of 1999 (India)

[39] cf. Council Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 Concerning Misleading and Comparative Advertising, art. 4(g), 2006 O.J. (L 376) 21 (EU)

[40] See Sumitomo Order, supra note 1, ¶¶ 29–33; Trade Marks Act, 1999, § 29(2), No. 47 of 1999 (India) (providing that infringement occurs where a defendant uses an identical or similar mark for identical or similar goods or services and the use "is likely to cause confusion on the part of the public, or which is likely to have an association with the registered trade mark"); Renaissance Hotel Holdings Inc. v. B. Vijaya Sai & Ors., Civil Appeal No. 404 of 2022 (S.C. India Jan. 19, 2022) (clarifying that the "likelihood of confusion" standard governs Section 29(2) infringement for similar marks and similar goods)

[41] See Dhonchak, supra note 17 (warning that the lack of an objective standard for comparing scents makes enforcement of registered smell marks likely to require expert evidence and creates a risk that protection will prove "toothless" in practice); Stafford et al., supra note 18 ("Without an objective standard that determines whether one scent is too similar to another scent and without the ability to classify or perceive scents universally, it is difficult to evaluate the similarity of scents. That difficulty ultimately makes the process of bringing an infringement claim to court more cumbersome and riskier than traditional trademark litigation."); accord Ananya Nadajoshi, Order of the Rose: Sets Olfactory Trademark Standards, BananaIP Intellepedia (Nov. 27, 2025),

https://www.bananaip.com/intellepedia/olfactory-trademark-india-rose-scented-tyres-legal-history/ (noting that the Sumitomo order "opens the door" to olfactory marks but that the Registry must maintain rigorous distinctiveness standards to prevent registration of common everyday scents that would grant disproportionate monopolies)