Decoding India’s first accepted Smell Trademark: ‘Rose-Fragranced Tyres’

INDIA’S TRADE MARKS REGISTRY recently accepted its first “smell mark” application. The Controller General of Patents, Designs and Trade Marks (‘CGPDTM’) last week approved Sumitomo Rubber Industries Ltd.’s application for “FLORAL FRAGRANCE / SMELL REMINISCENT OF ROSES AS APPLIED TO TYRES” (Class 12: tyres for vehicles) on a proposed-to-be-used basis. 

This case forces Indian trademark law to confront an age-old question: can an odour, an inherently subjective sensory perception, function as a legally protectable indicator of commercial origin?

Under Indian law (as under TRIPS), a trademark must be a “mark capable of being represented graphically” and distinctive. Traditionally, this meant visual signs (words, devices, colours). A smell, by contrast, has no visible outline. The Sumitomo mark, therefore, challenged the routine workings of the Trade Marks Act, 1999 (‘the 1999 Act’) and Rules. 

As the Order (dated 21/11/2025) notes, “the application was examined and was objected under sections 9(1)(a) and 2(zb) of the Act for lacking distinctiveness and not being supported by a graphical representation, which is a mandatory requirement under the Act.” The applicant appealed through written submissions and hearings, with senior IP counsel Pravin Anand appointed as amicus curiae to advise impartially.

Smell (Olfactory) Marks

A smell mark (or olfactory mark) is simply a trademark defined by an odour rather than a visual or textual sign. In principle, any “sign” that tells consumers about origin may qualify. Trademark regimes worldwide have gradually acknowledged non-traditional marks, including sounds, colours, shapes, and potentially smells, which can serve as source identifiers if they meet the law’s criteria. 

Notably, the Paris Convention’s “telle quelle” clause suggests that a mark registered abroad should, in principle, be accepted “as is” unless it conflicts with local law. Under TRIPS (Article 15), member states may require marks to be “visually perceptible”, but they may also allow broader categories at their discretion. 

The 1999 Act follows the pattern of many systems: it does not expressly exclude non-visual marks. Indeed, Section 2(1)(m) defines “mark” in inclusive terms (“a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof”). A literal reading could accommodate smells, so long as the two conditions of Section 2(1)(zb) are met.

Internationally, only a few olfactory marks have been registered. The UK famously accepted its first smell mark in 1996 - the identical Sumitomo rose-scent mark (UK Reg. No. 02001416) for tyres and another for “strong smell of bitter beer” on darts’ flights. The EU has not outright banned scent marks, but in Sieckmann v. DPMA (ECJ 2002) the Court set a strict representability test: a scent must be graphically represented in a manner which is clear, precise, self-contained, easily accessible, intelligible, durable and objective.

In the United States, by contrast, the focus is on functionality and distinctiveness: scent marks are registrable if the fragrance is non-functional (not inherent to the product) and unmistakably source-identifying. For example, the famous TTAB case In re Clarke (1990) upheld “fresh floral fragrance reminiscent of plumeria blossoms” for sewing thread, reasoning that a fragrance can “function as a trademark” if uniquely used by one party. The US Examining Manual (TMEP §1202.13) requires a detailed description of the scent; samples can be filed, but no standard image is needed.