India’s First Smell Trademark and the Emergence of Sensory Branding in Indian Trademark Law

Introduction: A Turning Point in Indian Trademark Jurisprudence

The recognition of the first scents-based trademark for India in the year 2025 is a turning point for the intellectual property regime of this nation. The concept of trademarking, as it stands in India, has always been based on visual and graphical elements such as words, logos, symbols, labels, and shapes that can be easily distinguished and depicted graphically. The recognition of a scent as a trademark upsets this long-held concept and marks a consequent shift towards recognizing branding as an experience involving all senses.

The olfactory mark that is accepted by the Indian Trade Marks Registry is for the "floral fragrance reminiscent of roses as applied to tyres" and has been filed by Sumitomo Rubber Industries Limited[1]. Though it is not the opening of the floodgates, still it is the well-reasoned extension of the ambit of marks that are protectable under the law of India. More significantly, it forces a re-evaluation of the law regarding graphical representation, distinctiveness, functionality, and enforceability for non-visual marks.

The article discusses the first smell trademark granted in India as interpreted from the perspective of statutory interpretation, doctrinal evolution, and practical implications for brand owners and practitioners. It asserts that although the decision indeed symbolizes both progressive and pragmatic approach, caution, evidentiary rigor, and doctrinal clarity are not to be compromised as India embarks on the sensorial branding domain.

Understanding Olfactory Trademarks: The Concept and Reasoning

An olfactory mark or smell mark corresponds to an odour used as an identifier of origin for products or services. Like an word mark or logo, an smell mark must be distinctive so as to enable consumers to link an odour to one specific business origin. The reasoning behind an smell mark corresponds to the original purpose of having an trademarking system.

For the marketer, the sense of smell is a fiercely evocative stimulus. Research in the neurological sciences has made clear the broad connection between smell and memory or emotion, making smell a highly attractive branding aid. Retail environments, hospitality industries, and product itself increasingly employ characteristic scents in an effort to differentiate brand experience. Until recently, however, the practice of trademarking in India had not provided much scope for nonvisual identifiers.

This reluctance in accepting smell marks is neither policy-based nor grounded in statutory/doctrinal constraints other than graphical representation requirements. The Sumitomo acceptance thus represents a blend of market reality and legal flexibility.

Legislative Background: The Definition of “Trademark” in Indian Law

The legal basis for examining fragrance trademarks is grounded under Section 2(1)(zb) of the Trade Marks Act, 1999[2], which specifies a “trade mark” to include a mark which is capable of being represented graphically and is capable of distinguishing the goods or services of one person from those of others. The specified definition is deliberately broader and more inclusive, subject to functionality and not mere form. The word “mark” per se is itself defined under Section 2(1)(m)[3] as including a number of indicators like devices, trademarks, labels, shapes of goods, packaging, and combinations of colours. Though odour is not specifically referred to, the broad scope of its meaning permits other forms of marks, including non-traditional marks, as long as it fulfils the dual requirements of graphical representation and distinctive characters.

[Image Sources: Shutterstock]

Traditionally, the first requirement of graphical representation proved a doctrinal hurdle for scent trademarks. Trademark law in India, modelled on European judicial precedents, required representations to be clear, precise, self-contained, accessible, intelligible, durable, and objective. To fulfil these criteria, smells remained a poor example to follow. The Sumitomo decision makes it clear that the statutory text itself had never ruled out smell marks; it was rather the interpretative approach towards graphical representation which did so. With more a purposive interpretation, the Registry has moved to broaden the practical reach of Section 2(1)(zb) without changing its textual boundaries.

Distinctiveness: The Core of Smell Trademark Protection

Distinctiveness, therefore, remains an underlying aspect of trademark law regardless of whether it is a traditional trademark or a non-traditional trademark. Based on Section 9 of the Trade Marks Act, a trade mark that lacks distinctive character will be opposed for registration unless it has been able to acquire distinctive character through usage. In the context of smell marks, the issue of distinctiveness is more problematic than others. The consumers must perceive the smell, not as a product quality, but as a signal of its commercial source.

In so far as rose-scented tyres, it would seem that the Registry has been satisfied that in as much as fragrances which evoke roses on tyres are not in the ordinary course of nature associated with pleasing aromas, nor play an obvious functional role, there exists an arbitrariness sufficient to sustain an action for trademark in so far as the scent in question can operate as a trademark. For future applicants, proof of consumer recognition, marketing materials touting this scent as a hallmark of their brand, as well as periods of use, will be important for determination of distinctiveness.

The  Indian stance on its first-ever scent-based trademark assumes importance. Rather than choosing to follow strict and orthodox views on graphical representation, India’s Trade Marks Registry adopted an exemplary and functional approach to grant recognition to scientific and technical representation of this scent by embracing a non-traditional way of representing this fragrance. By doing therefore, this approach was able to focus not on formalistic or rigid aspects but on functional and practical considerations, and this also helped such non-traditional registration to fall within the existing Trade Marks Act of 1999 and not attempt to modify their legislations to accommodate this matter.

This policy corresponds rather well to India’s commitments to international intellectual property treaties such as TRIPS, which allow a high degree of latitude in defining registrable signs to members, as long as the essential role of trade markers in indicating origin as well as consumer protection remains secure. The Indian example of accepting a smell mark as registrable without legislative changes to IP laws has made it amply clear that growth in IP laws could indeed develop in an organic fashion within an established system rather than otherwise.

Functionality Doctrine and its limits

Functionality is one of the most significant safeguards in trademark law. Functionality is that aspect of a trademarked article that is necessary in its usage or function, or that impacts its cost or quality, it cannot be granted a trademark registration.

Regarding scent marks, the issue of functionality also gains importance. If a scent is a perfume that conceals an unpleasant odour, improves the processing of a product, or has a technical purpose, it can be classified as a functional element that lacks trademark registrability.

The Sumitomo decision highlights this difference. The rose fragrance used in tyres had been held to be non-functional because it had no practical use in improving performance. There thus has to be very specific reasoning to ensure that neither trademark protection oversteps into patently protected territory.

Challenges in Enforcement and Global Positioning

The  registration of a smell mark does indeed represent an important doctrinal leap forward, its true challenge lies in enforcement. Unlike traditional visual marks, which allow for easy side-by-side comparison, smells will require complicated evidentiary evaluation. Courts are bound to resort to expert olfactory testimony, chemical analysis, and consumer perception surveys to determine whether the allegedly infringing scent is identical or deceptively similar. This, again, implies certain pragmatic problems regarding litigation costs, evidentiary availability, and uniformity of judicial standards. However, Indian courts have already demonstrated their institutional competence in handling technically dense evidence in patent and pharmaceutical cases, indicating that judicial standards for smell mark enforcement may develop organically through the case law.

Addressing the smell trademark in the  global context, cautious and limited recognition has been accorded to the same, as many jurisdictions struggle to balance representational precision with doctrinal certainty. Further, India’s approach is distinctive in its reliance upon scientific representation and flexible statutory interpretation, rather than legislative overhaul. As it were, this approach aligns with the international intellectual property frameworks that accord states discretion in granting recognition to registrable signs, provided core trademark functions are preserved. By accommodating olfactory marks within its existing legal framework, India has signalled a pragmatic and adaptive approach towards sensory trademarks, placing it alongside more forward-looking jurisdictions in the evolving landscape of non-traditional trademark protection.

Global Positioning of Indian Smell Marks & Their Pragmatic Implications to Stakeholders

The development of scent trademarks has remained sparse, and this has been particularly due to the challenges of accurate representation and evidentiary certainty. Although some nations remain cautiously experimental in the use of scent trademarks, the results remain sporadic in nature. India’s model, in this case, merits especial observation in this regard. Instead of waiting for evolutionary changes in legislation, the Indian model has shown pragmatism in conforming trademark law to the realities of the contemporary world of brand creation through scientific representation, thus showing conformity with the global framework of intellectual property regulation, according to which member nations retain flexibility with regard to the definition of registrable marks provided the essential characteristics of a trademark, such as the indication of source, remain unaffected.

For trademark owners, this is a whole new frontier that has been opened with regard to differentiation and creating value. Other senses such as smell, instead of being considered ancillary marketing tools, can now be fully integrated into a trademark and potentially protected. On the contrary, for lawyers who practice trademark law, a whole new level of technical competence is required. Technical prosecution and enforcement of smell trademarks will necessarily need to be handled in conjunction with scientific professionals. With the rise of sensory marketing, lawyers need to adjust their skillset with regard to dealing with a whole new and complex area of trademark law.

Conclusion

india's acceptance of its first scent trademark is a measured step, both transformational and evolutionary in trademark jurisprudence. It brings into focus the adaptability of "graphical representation" and "distinctiveness" in statute law, while retaining necessary safeguards against over-protection.

Instead, it opens the tertiary gates. The decision imposes a high standard of proof and legal threshold with regard to smell marks. This is achieved while striking a balance between innovation and certainty. The increasing importance of sensory brands in consumer engagement means that the relevant trademark law in India has made a major shift towards staying relevant in a multisensory commercial environment.

The future effect of this change remains to be seen, as further applications, oppositions, and enforcement cases will sharpen the definition of olfactory trademark protection in years to come.   Indian trademark laws have finally broken from visual interpretations of trademark to realize that in today’s world of branding, there’s much more to identity than what’s visible—sight, sound, and smell.”

Author: - Srijan Saha, 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. World Trademark Review, India’s First Smell Trademark Signals New Era for Sensory Brand Protection (2025),https://www.worldtrademarkreview.com/article/indias-first-smell-trademark-signals-new-era-sensory-brand-protection.

2. iPleaders, What Does India’s First Smell Trademark Mean for Sensory Branding?,https://blog.ipleaders.in/what-does-indias-first-smell-trademark-mean-for-sensory-branding/.

3. European Union Intellectual Property Helpdesk, India’s First Olfactory Trade Mark (Dec. 10, 2025),https://intellectual-property-helpdesk.ec.europa.eu/news-events/news/indias-first-olfactory-trade-mark-2025-12-10_en.

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