Non-traditional trademarks, especially smell and taste marks, have long found themselves at crossroads due to the difficulty in establishing distinctiveness and meeting the requirement of graphical representation under Section 2(1)(zb) of the Trade Marks Act, 1999.
In a landmark move, TM No. 5860303 filed in class 12 became the first Indian trademark application to be accepted as an olfactory mark for potent floral scent of roses incorporated in tyres produced by the Applicant, Sumitomo Rubber Industries, Ltd, a Japanese company. The application clearly stated that the trademark is an olfactory smell trademark for tyres that smell of roses.
The Trade Marks Registry in the Examination Report stated that it did not have an appropriate mechanism to examine smell marks. The Registry emphasised that Section 2(1)(zb) requires a trademark to be capable of being graphically represented and since there is no module to assess distinctiveness, the application would have to be filed as a word mark. The matter underwent multiple hearings and written submissions.
As regards distinctiveness, it was submitted by the Applicant that the smell of a rose is entirely arbitrary in relation to tyres and that the unique innovation of infusing a floral fragrance of roses into tyres renders the subject mark inherently distinctive. It was also submitted that the subject olfactory mark had already been granted registration in UK under No. 00002001416 in 1996.
Further with the assistance of a team of scientists from IIT Allahabad, a technology was developed to graphically represent the smell of roses as a vector in 7-dimensional space. Each dimension defined 7 fundamental smells namely, floral, fruity, woody, nutty, pungent, sweet and minty. In addition, international precedents from countries like USA, Australia and European Union that provided registration of olfactory marks were also relied upon. The Registry had also appointed an amicus-curiae in the matter, whose submissions offered comparative jurisprudence from various jurisdictions, and provided a supporting scientific report aimed at establishing the distinctiveness of the applied-for mark through objective and scientific means.
After multiple hearings, the trademark was granted protection on 21.11.2025, with the primary reason being that the mark had been successfully represented graphically, as provided below.
The Controller General of Patents, Designs and Trade Marks (CGPDTM) recognized the mark as inherently distinctive, arbitrary for tyres, and capable of distinguishing goods, thus meeting the statutory requirements for trademark registration.
However, a question that still remains unanswered is how does one determine if a smell mark has been infringed? What would be the parameters to test infringement of a smell mark in the absence of established standards? As India steps into the era of non-traditional marks, this promises to be the next big debate in the world of intellectual property.
Fun fact, the CG has signed off the Order with a smilie – 
