On 21 November 2025, India’s Trade Marks Registry accepted its first olfactory trademark: a rose-like fragrance applied to tyres, filed by Sumitomo Rubber Industries Ltd. The decision resolves two foundational questions about non-traditional marks in India and signals that smell, sound, and other sensory identifiers can now qualify for trademark protection if they satisfy the same statutory criteria as conventional marks.
Introduction
Trademarks exist to answer one simple question: where did this come from? That question can be answered by a name, a logo, a tagline, a sound, a colour, or as the Trade Marks Registry has now confirmed, a smell. The Trade Marks Act, 1999 does not limit the definition of a mark to visual signs. It uses an inclusive definition that leaves space for non-traditional identifiers, provided they satisfy the Act’s basic requirements of graphical representation and distinctiveness.
That is exactly the framework the Registry applied when it accepted Sumitomo Rubber Industries’ application for a floral fragrance reminiscent of roses as applied to tyres. In doing so, it placed India among a small group of jurisdictions worldwide that formally recognise olfactory trademarks, and it produced the first Indian order setting out how such marks should be represented and assessed.
Background: Why a Rose Scent on a Tyre?
Sumitomo Rubber Industries has infused a rose-like fragrance into its tyres since 1995 as part of a deliberate product-innovation and branding strategy. The scent was introduced to neutralise the unpleasant rubber smell and to create a distinct and memorable sensory experience for consumers. It is not a by-product of the manufacturing process or a functional feature of the tyre; it serves purely as a source identifier.
The application was filed on a proposed to be used basis in March 2023. The Registry issued an examination report in August 2023 raising objections on two grounds. Rather than simply refusing, the Registry referred the matter to an amicus curiae, Mr. Pravin Anand, who worked with researchers at the Indian Institute of Information Technology, Allahabad, to develop a scientifically structured graphical representation of the rose-like smell. That representation became the foundation on which the Registry accepted the application.
The scent of roses is universally recognisable and capable of being easily imagined. When a consumer perceives a rose-like scent as a vehicle passes, they would form a direct association between the goods and their commercial source. That is precisely what a trademark is supposed to do.
The Two Statutory Tests and How the Registry Applied Them
The Registry’s analysis focused squarely on the two threshold requirements that apply to every trademark under the Trade Marks Act, 1999: graphical representation under Section 2(1)(zb), and distinctiveness under Section 9(1)(a). The objections, and the Registry’s findings on each, are set out below.
| Statutory Test | The Objection | The Registry’s Finding |
| Graphical Representation Section 2(1)(zb) | A smell has no visual form. There is no logo or word that can be placed on paper. The Registry questioned whether the applicant could satisfy the mandatory requirement that a mark be capable of being represented graphically. | The Registry accepted the seven-dimensional vector model developed by researchers at IIIT Allahabad. The rose-like smell was expressed as a vector in a space with seven dimensions, each representing a fundamental smell category: floral, fruity, woody, nutty, pungent, sweet, and minty. The model set out the constituent smell elements and their relative strength in the overall composition. The Registry held that this model sufficiently captured the metes and bounds of the smell and satisfied the graphical representation requirement. |
| Distinctiveness Section 9(1)(a) | The Registry questioned whether a smell could function as a source identifier and whether consumers would perceive the rose fragrance as indicating commercial origin rather than merely a pleasant product characteristic. | The Registry found the mark inherently distinctive on the basis of its arbitrary relationship with tyres. A rose scent has no functional or natural connection to tyres, which are ordinarily associated with the smell of rubber. Because of that contrast, a consumer perceiving a rose-like scent from a passing vehicle would associate it with commercial source, not with the goods’ nature or characteristics. The Registry stated it had no hesitation in finding the mark distinctive. |
The Scientific Model: How a Smell Becomes a Graphic
The central technical question in the proceedings was how to represent a smell in a form that is clear, precise, intelligible, and objective, the criteria that graphical representation requires across trademark systems worldwide.
The model developed at IIIT Allahabad addressed this by treating a smell as a point in a seven-dimensional space. Each of the seven dimensions corresponds to one of the fundamental categories into which odour perception can be classified: floral, fruity, woody, nutty, pungent, sweet, and minty. The rose-like smell is represented as a vector in that space, with each dimension assigned a value reflecting how strongly that quality is present in the overall composition.
This approach has several significant features. It makes the representation reproducible, because anyone with the model can check whether a given smell matches the claimed vector. It makes the representation objective, because it does not rely on verbal description alone. And it makes the scope of protection identifiable, because the vector establishes the exact boundaries of what is claimed. The Registry accepted that the model satisfied all these criteria and directed advertisement of the application alongside the graphical representation as an annexure to the order.
What the amicus curiae contributed
Mr. Pravin Anand was appointed as amicus curiae to assist the Registry with the novel questions the application raised. His submission included a scientific report developed with IIIT Allahabad researchers, which the applicant then formally adopted as part of its representation. The amicus also informed the Registry that Indian trademark law does not exclude olfactory marks, that several foreign jurisdictions recognise them, and that the rose-like scent applied to tyres is arbitrary, inherently distinctive, and capable of functioning as an indicator of commercial origin.
Global Context: Where India Now Stands
Smell marks occupy a narrow but strategically significant niche in trademark systems worldwide. The Sumitomo UK registration was itself the first smell mark accepted in any jurisdiction. India’s acceptance of the same mark nearly three decades later places it among the limited group of countries willing to recognise olfactory marks under clearly articulated standards.
| Jurisdiction | Position on Smell Marks | Key Point |
| United States | Accepts scent marks. Requires proof of acquired distinctiveness through consumer recognition and rigorous examination of non-functionality. First scent mark: In re Celia Clarke (1990), a fresh floral fragrance for sewing thread. | Acquired distinctiveness required |
| United Kingdom | Accepted Sumitomo’s rose-scented tyre mark in 1996 as the first smell mark registered anywhere. Now subject to EU-derived criteria post-Brexit, with representation requirements closely linked to the Sieckmann case. | First jurisdiction globally to accept a smell mark |
| European Union | Smell marks currently not registrable under EUIPO guidelines. The Sieckmann case (ECJ, 2002) found that a chemical formula and verbal description were not sufficient graphical representation. No solution has yet been accepted as adequate. | Not currently registrable |
| Japan | Some theoretical scope for smell marks but no formal registrations accepted. Japan’s trademark law does not expressly exclude olfactory marks but the graphical representation hurdle has not been cleared in practice. | No registrations accepted |
| India | First olfactory trademark accepted on 21 November 2025. Registry accepted a seven-dimensional scientific vector model as adequate graphical representation. Distinctiveness assessed on arbitrariness relative to the goods. | First acceptance: Sumitomo, November 2025 |
What the Order Settles in Indian Trademark Law
The order addresses three specific legal questions that had not previously been resolved in the Indian context.
1. Section 2(1)(m) Does Not Exclude Smell Marks
The definition of a mark in the Trade Marks Act, 1999 is inclusive, not exhaustive. There is no blanket exclusion for olfactory marks, and the Registry confirmed that a smell can qualify as a mark subject to the same requirements that apply to all marks. The 1999 Act replaced the earlier 1958 Act, which was limited to visual marks. The 1999 Act’s broader definition was deliberately intended to accommodate non-traditional signs, and this order confirms that the scope extends to smell.
2. Scientific Representation Is Adequate Graphical Representation
For every trademark, traditional or not, the Act requires the mark to be capable of being represented graphically under Section 2(1)(zb). The Registry expressly accepted that a scientific model, in this case the seven-dimensional vector representation, satisfies this requirement for a smell mark. This is a significant holding because it provides applicants for other non-visual marks with a methodology: if a sensory feature can be described objectively, precisely, and reproducibly through a recognised scientific framework, that description can constitute graphical representation.
3. Arbitrariness Is the Key to Distinctiveness for Sensory Marks
The Registry’s distinctiveness analysis focused entirely on the relationship between the mark and the goods. A rose scent is arbitrary for tyres. It has no natural link to how tyres are made or what they are for. That arbitrariness is what makes it capable of functioning as a source identifier. The Registry drew an explicit contrast with the rubber smell that consumers expect near frequently used roads, noting that the contrast itself is what creates the memorable association. This reasoning extends to other sensory marks: a sensory feature that is unexpected, non-functional, and non-descriptive in the context of the goods will be the strongest candidate for distinctiveness.
Open Questions: What the Order Does Not Resolve
The acceptance of the application for advertisement is not the same as a final registration. The order directs publication in the Trade Marks Journal under Section 20, after which the application is open to opposition from third parties. Several substantive questions remain live.
The functionality question
A feature that is essential to the purpose of a product or gives it a significant competitive advantage cannot be protected as a trademark under Section 9(2). The Sumitomo decision does not grapple directly with whether a rose fragrance infused into tyres to neutralise rubber smell might have a functional dimension. Academic commentary, including analysis published on SpicyIP, has raised this concern: if the scent was introduced partly to make the product more appealing by masking an unpleasant odour, does it provide a competitive advantage that should remain available to all manufacturers? This question was not central to the objections raised in examination and was not squarely addressed in the order. It may arise in opposition or in future proceedings
The scope of the seven-dimensional model
The seven-dimensional vector model describes a specific rose-like smell at a specific point in the smell space. Enforcement will require demonstrating that an allegedly infringing smell is sufficiently close to that vector to constitute infringement. The methodology for comparing smells, and the tolerance within which two smells are treated as the same, have not yet been worked out in Indian practice. These are questions for future litigation and, potentially, for the development of expert evidence standards in olfactory trademark disputes.
What Businesses Should Take From This
The Sumitomo order is significant not only for its subject matter but for the methodology it endorses. The path to registering a non-traditional mark in India is now more clearly defined.
- Scientific representation is a viable route
- Arbitrary sensory features are the strongest candidates
- Non-traditional marks are part of India’s live trademark landscape
- R&D and branding need to work together
- Early adopters will have a structural advantage
Conclusion
The Sumitomo order is the first Indian decision to work through how a smell mark satisfies the core statutory requirements of the Trade Marks Act, 1999. It confirms that the Act’s inclusive definition of a mark extends to olfactory signs, that scientific representation can constitute adequate graphical representation, and that arbitrariness relative to the goods is the relevant test for distinctiveness.
Open questions remain, particularly around functionality, the scope of the seven-dimensional model in enforcement, and how India will develop standards for comparing smells in infringement proceedings. Those questions will be answered in future litigation and, potentially, in further Registry guidance.
For now, the decision answers the broader question in the title. A trademark can go as far as the senses reach, provided the mark is properly defined, genuinely distinctive, and meets the Act’s requirements. India’s trademark landscape is richer for it.
Key References
Controller General of Patents, Designs and Trade Marks, Order dated 21 November 2025 in Trade Mark Application No. 5860303
Governing Law
Trade Marks Act, 1999: Section 2(1)(m), Section 2(1)(zb), Section 9(1)(a), Section 9(2), Section 11, Section 20
