History Made: A Detailed Examination of India’s First [Possible] Olfactory Mark

Article

The Controller General of Patents, Designs and Trade Marks [“CGPDTM”] on November 21, 2025, accepted for advertisement an olfactory trademark: a ”floral fragrance/ smell reminiscent of roses as applied to tyres” for Sumitomo Rubber Industries Ltd., via Trade Mark Application No. 5860303. This historic decision, which paves the way for the potential registration of India’s first Olfactory [Smell] Trademark, signifies an unprecedented expansion of the definition of a ‘mark’ under the Trade Marks Act, 1999 [“the Act”].

In fact, it stands as a monumental declaration of India’s commitment to modernising its intellectual property rights [“IPR”] framework, by opening the door for non-conventional smell marks in India [subject to the conditions set out in the Act].

THE FACTS AND PROCEEDINGS

The present discussion is centred around the Trade Mark Application filed by Sumitomo Rubber Industries Ltd. of Japan seeking registration for the olfactory mark described as “FLORAL FRAGRANCE/ SMELL REMINISCENT OF ROSES AS APPLIED TO TYRES” in Class 12 [tyres for vehicles, as per the Nice classification] on a “proposed to be used” basis.

Right from its inception, the application was recognised by the Registry as one that “falls under the category of rarest applications and challenges legal boundaries of the trademarks law in India”.

Recognising the novelty and complexity of the case, the CGPDTM appointed Shri Pravin Anand, a senior IP practitioner, as the amicus curiae to provide impartial assistance in view of the complex questions involved. In turn, he engaged Prof. Pritish Varadwaj, Prof. Neetesh Purohit and Dr. Suneet Yadav of the Indian Institute of Information Technology, Allahabad [“IIIT-A”] to devise a method of graphically representing the smell.

The IIIT-A specialists produced a seven-dimensional vector model of the rose-like smell, mapping it across seven “fundamental smells”: floral, fruity, woody, nutty, pungent, sweet and minty. This representation, together with an explanatory note, was adopted by the applicant and filed as part of the mark’s representation, becoming central to the case.

In March 2023, the Applicant applied for the registration of an olfactory trademark for its tyres in Class 12, described as a “floral fragrance/smell reminiscent of roses as applied to tyres”. This is a special kind of mark, known as “unconventional”. This is because it is not a visual mark and instead consists of a distinctive identifying feature [smell intended to emanate from tyres] so that the product may be identified and perceived in connection with that feature [scent].

ISSUES RAISED

However, on examination in India, the Trade Marks Registry raised two main objections:

That the mark was devoid of distinctive character under Section 9[1][a] of the Act or is, instead, inherently or factually distinctive in relation to tyres, and
That it did not satisfy the statutory requirement of “capable of being represented graphically” under Section 2[1][zb], given that smells are not naturally visual and no accepted form of graphic representation had been filed. The scope of protection was also considered unclear.

Following the examination report, the Applicant filed a comprehensive response. The subsequent proceedings involved multiple hearings and submissions, which eventually required external expert assistance to assist the Registry navigate the jurisprudential gaps related to smell marks.

THE APPLICANT’S SUBMISSIONS

The Applicant submitted that as part of their product strategy, they have infused a rose-like scent into tyres since around 1995, with the objective of replacing the unpleasant odour of rubber with a positive, distinct sensory cue. They claimed that their infusion of the rose fragrance into their products has been “an integral component of their business strategy and product development since the year 1995”. This highlights their long-term strategy for product differentiation. In fact, before seeking registration in India, the same mark was registered in the United Kingdom [Trademark number UK 00002001416] in 1996, marking a historic moment as the first olfactory mark of the country. The Applicant argued that this UK registration demonstrates that such a smell mark can be distinctive and capable of registration.

The Applicant argued the scent was inherently arbitrary and non-functional to tyres, making it a strong source identifier. Initially arguing that the verbal description [“smell reminiscent of roses”] satisfied the graphical representation requirement when viewed from the standpoint of the “man of average intelligence and imperfect recollection”, as the smell of roses is among the most universally recognised scents worldwide and that when perceived in association with tyres, it is unlikely to cause confusion or deception about the nature of the mark.

Subsequently, to meet the stricter expectations under Section 2[1][zb], the Applicant formally adopted the IIIT-A seven dimensional vector model, arguing that, together with the verbal description, this scientific representation captures the mark’s subject matter in a manner that is clear, precise and objectively verifiable.

Additionally, the Applicant also presented a commercial reason for the mark. They explained that they are the first tyre company to add scents to its tyres, thereby developing a novel, unique and memorable sensory experience for consumers. This creates a memorable product experience, indicates quality and innovation, and distinguishes the products of the applicant in a highly competitive tyre industry.

S. No.	Submission	Explanation
1	Inherent Distinctiveness	A potent floral scent of roses applied to tyres where such a smell is entirely unexpected is inherently distinctive and arbitrary.
2	Acquired Reputation	Substantial international recognition, notably being the first olfactory trademark registered in the United Kingdom in 1996. This was used to argue that the mark had “acquired formidable reputation and unparalleled distinctiveness”.
3	Graphic Representation by Description	International precedents, including “the smell of fresh cut grass”, were cited to argue that the description “smell reminiscent of roses” is sufficiently clear, well-known, and understood by the public.
4	Commercial & Business Functionality	Trademarks must identify origin, guarantee quality, advertise, and create sensory impact. Scent enhances recall and brand association.

THE STATUTORY FRAMEWORK AND INTERNATIONAL POSITION

Section 2[1][zb] of the Act defines a “trade mark” as a mark capable of being represented graphically and capable of distinguishing goods or services of one person from those of others. In the Order, the CGPDTM has noted that this definition was changed in 1999 [from the 1958 Trade and Merchandise Marks Act] to emphasise both distinctiveness and graphic representation, demonstrating a clear legislative intent that must be given effect. The Order also situates the case within the broader context of non-conventional trademarks, referring to global developments on sound, shape, colour and particularly smell marks in jurisdictions such as the European Union, the United Kingdom, the United States and Australia.

Further, Section 2[1][m] of the Act defines “mark” in inclusive terms to cover a wide range of signs, including device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging and combination of colours, or any combination thereof, while not expressly mentioning smells.

The applicant and amicus referred to key international decisions, most notably Siekmann v. German Patent and Trademark Office, where the European Court of Justice held that for a sign to be registered, its graphical representation must be clear, precise, self contained, easily accessible, intelligible, durable and objective, and that a chemical formula, mere words or a sample of the scent were insufficient to represent an odour mark for registration purposes.

They also invoked Vennootschap Onder Firma Senta Aromatic Marketing v. Markgraaf B.V., famously known as the “fresh cut grass - tennis ball” case, in which the EU Board of Appeal accepted a description of the smell of fresh cut grass as sufficiently recognisable and distinctive.

SUBMISSIONS OF THE AMICUS CURIAE

The amicus curiae emphasised two main doctrinal points:

Firstly, he observed that numerous jurisdictions have granted protection for scent marks, and although Indian law does not specifically address smells, it does not explicitly prohibit them either. In his view, the inclusive definition of “mark” in Section 2[1][m] allows for the inclusion of new types such as smell marks, as long as they satisfy the legal requirements of being graphically representable and distinctive under Section 2[1][zb].
Secondly, he argued that the smell of roses as applied to tyres is arbitrary and unique to the applicant’s goods and is therefore inherently capable of distinguishing those goods, satisfying the distinctiveness requirement.

Fig.: Graphical Representation [with Description] of Rose-like Smell, developed by IIIT-A, as available in the Order dated November 21, 2025, by the Controller General of Patents, Designs and Trade Marks in the Trade Mark Application No. 5860303.

On the technical side, the amicus presented the scientific graphical representation prepared by IIIT-A. The IIIT-A team employed machine learning techniques to pinpoint the main volatile organic compounds responsible for a rose-like scent and mapped them into a seven-dimensional olfactory space. Each dimension corresponds to a basic smell category: floral, fruity, woody, nutty, pungent, sweet, and minty.

The amicus curiae submitted that this representation, when read with the verbal description, is clear, reproducible, durable and objective and should be accepted as satisfying the graphical representation requirement, in spirit if not in form, of the Sieckmann standard. He therefore recommended that the Registry remove its objections and accept the application for advertisement as an olfactory mark.

ANALYSIS OF THE ORDER IN THE CONTEXT OF UNCONVENTIONAL MARKS

The CGPDTM’s final analysis focused rigorously on the two statutory requirements of Section 2[1][zb] of the Act: graphical representation and the capacity to distinguish. It was emphasised that trade mark law functions as an enabler of trade. On one hand, it protects the goodwill embodied in marks used by traders. On the other hand, it protects consumers by ensuring that registered marks are distinctive and properly represented, thereby preventing confusion. The CGPDTM acknowledged that with the growth of trade and commerce, and the increasing number of marks, achieving distinctiveness is becoming more challenging, particularly for non-conventional marks that do not benefit from the immediacy of visual perception.

Regarding the conceptual question of whether smells can be considered marks, the Controller noted that Section 2[1][m] adopts an inclusive approach, allowing for the inclusion of additional categories of marks. It was held that this provision in itself cannot be the reason to refuse a smell mark, provided that the requirements of Section 2[1][zb]: distinctiveness and graphical representation - are complied with.

A. GRAPHICAL REPRESENTATION

The requirement for graphical representation has historically served as a significant barrier against the registration of non-conventional marks, particularly those perceived as fleeting or subjectively interpreted, such as sound and smell. The Order explicitly noted that the 1999 Act introduced this mandatory requirement.

The CGPTDM, however, adopted a pragmatic and progressive interpretation: “A graphical representation akin to the one that is usually filed by applicants in case of for instance a word mark or a device mark cannot be filed with reference to the smell in question, and the same cannot be the reason to deprive an entire sector of industry working in the field of smells and aromas from the benefits of the Act”. This statement alone establishes the principle of purposive interpretation of the Act to accommodate modern commerce and technology.

It was accepted that a conventional graphical representation, such as a word mark, device or logo, cannot adequately capture a smell. However, the CGPTDM warned against using this limitation to exclude entire sectors, such as industries built around smells and aromas, from trademark protection. Where the text of Section 2[1][zb] allows flexibility, different approaches may be justified for unconventional marks.

The decisive factor, however, was the scientific representation provided by the team from the IIIT-A:

The experts at IIIT-A defined the scent mathematically and objectively as a vector in a 7-dimensional space. Each dimension was precisely quantified according to the seven fundamental smells: floral, fruity, woody, nutty, pungent, sweet, and minty. Practically, the strongest smell would be perceived first by a consumer’s olfactory receptors, followed by the others in order of their relative intensity. The graphical representation, in the Controller’s view, clearly recorded the presence of each constituent smell and its relative weight in the overall composition. As such, it permitted competent authorities and the public to determine the precise subject matter of protection, satisfying the requirement that the mark’s “metes and bounds” be ascertainable from the representation.

On that basis, the CGPTDM held that the combination of the verbal description “floral fragrance/smell reminiscent of roses as applied to tyres” and the seven-dimensional vector diagram is sufficient to meet the statutory requirement of being “capable of being represented graphically” under Section 2[1][zb]. The representation was found to be clear, precise, self-contained, intelligible [at least to those inspecting the register], objective and durable in a manner akin to, though not identical with, the standards laid down in Sieckmann.

B. DISTINCTIVENESS

On distinctiveness, the CGPDTM contrasted the usual expectations of consumers regarding tyres and highways, namely the smell of rubber and traffic-related odours, with the pleasant, floral scent of roses. It was reasoned that when a vehicle fitted with such rose scented tyres passes by, the unusual smell would create a strong, memorable association in the consumer’s mind between the odour and the source of the goods.

Since the scent of roses has no direct connection with the characteristics or function of tyres, it was classified as arbitrary, placing it at the highly distinctive end of the spectrum. The CGPDTM therefore concluded that the mark is inherently distinctive and capable of distinguishing the applicant’s tyres from those of others, so that the objection under Section 9[1][a] of the Act could not be sustained.

Having found that the smell mark in question satisfies both the requirement of graphic representability and that of distinctiveness, the CGPDTM held that the application complies with the Trade Marks Act, 1999. The order states that the trade mark is “clear, precise, self-contained, intelligible, objective and is represented graphically”, and therefore satisfies the statutory standard.

Consequently, the Controller directed that Trade Mark Application No. 5860303 for “FLORAL FRAGRANCE / SMELL REMINISCENT OF ROSES AS APPLIED TO TYRES” in Class 12 be accepted and advertised in the Trade Marks Journal as an ”olfactory mark”, together with the approved graphical representation and description [as under Section 20 of the Act].

It is to be noted, however, that the decision does not yet grant final registration; the mark will proceed through the usual advertisement and potential opposition stages.

SIGNIFICANCE AS THE FIRST SMELL MARK IN INDIA

The acceptance of Sumitomo’s rose-scented tyre mark as an advertisement [a precursor to possible registration] is a landmark in Indian trademark law.

A. Expansion of the Statutory Definition of a Mark

The Order confirms that olfactory marks can be recognised as “marks” under the Act, and that the requirement for graphical representation can be fulfilled with scientifically rigorous, non-traditional diagrams accompanied by a clear verbal description. It also affirms that arbitrary, non-functional smells can be inherently distinctive for goods that have no natural connection to them.

B. Setting a Technical and Scientific Standard

The 7-dimensional vector model created by IIIT-A is one of the most significant legacies of this Order. Before its introduction, India’s IP system lacked a reliable, objective method for registering complex non-visual signs. This new technical standard effectively connects the legal need for graphic representation with the fleeting nature of scent.

This Order also raises complex doctrinal and practical issues: the required level of clarity for graphical representations, how to assess the similarity of smells, and the policy limits needed to prevent overly broad sensory monopolies. These issues are likely to be addressed in future opposition cases, legal disputes, and through legislative or regulatory clarifications.

Currently, the decision acts both as a precedent and a model: it marks India’s first recognition of a smell mark and provides a framework for future applicants to combine law, science, and branding to protect non-traditional sensory signs.