Indian Trade Marks Registry Accepts First Smell (Olfactory) Trademark

the Indian Trade Marks Registry accepted for advertisement what is being widely regarded as India’s first olfactory or smell based trademark application. The application, filed by Sumitomo Rubber Industries Ltd., relates to a rose like floral fragrance applied to tyres.

The acceptance marks a significant departure from conventional trademark registrations in India, which have traditionally centred around word marks, device marks, logos, and occasionally sound marks. While the Trade Marks Act, 1999 does not expressly prohibit non visual marks, practical barriers relating to representation and distinctiveness have historically limited the registration of sensory marks such as smells.

The application reportedly overcame objections relating to graphical representation and inherent distinctiveness. The applicant adopted a scientific and technical method to describe and represent the scent profile in a manner capable of being examined and published. The Registrar appears to have been satisfied that the fragrance, when applied consistently to the goods, is capable of functioning as a source identifier rather than merely a product attribute.

This development represents a maturation of Indian trademark jurisprudence in line with evolving global standards on non traditional branding.

Legal Analysis

Section 2(m) of the Trade Marks Act, 1999 defines a mark inclusively and does not restrict protection to visual elements alone. Further, Section 2(zb) requires that a trademark must be capable of distinguishing goods or services of one person from those of others and be capable of graphical representation.

Historically, the requirement of graphical representation has posed a significant hurdle for olfactory marks. Indian practice has demanded clarity, precision, and objectivity in representation. The acceptance of this application suggests a progressive interpretive approach by the Registry, potentially aligning with jurisprudential shifts seen internationally following the relaxation of strict graphical representation requirements in other jurisdictions.

However, acceptance for advertisement is not equivalent to final registration. The mark remains open to opposition under Section 21 of the Act. Questions may arise regarding functional necessity, depletion of scent categories, and evidentiary standards for enforcement.

Strategically, this development signals that brand owners in India can now meaningfully explore sensory branding protection. Practitioners should carefully evaluate whether the scent is non functional, consistently applied, and capable of acquiring distinctiveness. This may open a new frontier in Indian trademark practice.