The Indian trademark law has, in recent years, undergone a gradual shift and a growing openness towards non-traditional marks. Now, this trajectory has reached a new milestone. On 21st November 2025, the Controller General of Patents, Designs & Trade Marks (“CGPDTM”) recognized its first olfactory trademark. This registration is more than just a new branding initiative; it is India’s first attempt to incorporate sensory experiences into the fundamental principles of trademark law.
Even though the identification of a scent mark might seem like a logical continuation of this more general trend, olfactory marks present special legal difficulties. In contrast to visual or phonetic identifiers, scents are highly subjective, ephemeral, and volatile, posing issues that the current legal and evidentiary framework is ill-prepared to handle.
The Trademarks Act, 1999 adopts an inclusive and technologically neutral definition of a “mark” under section 2(1)(m). The use of the word “inclusive” instead of a more restrictive phrase, such as “consists of” signals a conscious effort to create an open-ended definition to accommodate novel and non-traditional marks. However, the legislation does not explicitly contemplate the representational, evidentiary, or procedural complexities associated with olfactory indicators. Consequently, much of India’s emerging jurisprudence in this domain is developing through administrative discretion rather than statutory guidance.
Further, the registration highlights unanswered doctrinal questions: What is sufficient technical or graphical representation for a scent? In situations where the subject matter is neither stable nor consistently perceived, how should courts evaluate “deceptive similarity”? In situations where the primary distinguishing characteristic, smell, dissipates over time, how can evidence be preserved? The lack of established procedural standards exacerbates these problems.
Given this, the Sumitomo olfactory mark provides an opportunity to examine the more serious structural shortcomings in India’s non-traditional trademark laws. This paper undertakes such an investigation by examining the representational model employed in the registration, charting the challenges of enforcing existing legislation, and situating India’s approach within comparative international jurisprudence. By doing so, it argues that, although the identification of olfactory marks is a progressive development, the development of precise doctrinal and procedural principles is still necessary for its usefulness. Without such advancements, the registration may remain only a symbolic act rather than a legally enforceable right under Indian intellectual property laws.
What is the Sumitomo case about?
The Japanese company, Sumitomo Rubber Industries Ltd., filed for registration on 23rd March 2023 under Class 12 (vehicles and their parts). It was filed under a “proposed to be used basis”. Since there was an absence of a category for smell, they had to file under the Word Mark category. The Japanese company has been using this scented technology in tyres since the 1990s. In 1996, the UK also approved this rose-scented trademark as its first olfactory trademark.
However, the Indian Trademarks Registry initially rejected the application on two grounds – graphical representation and distinctiveness. Under section 2(1)(zb), trademark means a mark which is capable of graphical representation and of distinguishing one’s goods from others. Historically, India has followed a strict approach regarding this to ensure clarity and precision. Under section 9(1)(a), a trademark cannot be registered if it is devoid of any distinctiveness. Meeting both of these criteria was a hurdle for a sensory mark.
Recognizing the complexity of the matter, the Trademarks Registry appointed an amicus curiae (Adv. Shri Pravin Anand) to provide assistance in the scientific and legal complexities of the matter. Mr. Pravin, along with researchers from IIIT Allahabad, worked on a detailed scientific argument to resolve the graphical representation issue. They came up with a solution that satisfied the legal standard of being clear, objective, intelligible and sufficiently precise.
A seven-dimensional vector model was submitted in the registry to create a graphical representation capable of satisfying the legal standard of being clear, objective, intelligible and sufficiently precise. The model employed VOC (volatile organic compound) analysis and multidimensional mapping to break down the rose fragrance into seven measurable components – floral, fruity, woody, nutty, pungent, sweet, and minty – each was given a different numerical value. The Registry concluded that this representation clearly and precisely described the rose-scented smell graphically.
Regarding the distinctiveness aspect, it was emphasized that the rose scent added to tyres is arbitrary and distinctive because tyres don’t inherently smell of roses. Its arbitrariness ensured that consumers encountering the scent would likely attribute it to a single commercial origin. Sumitomo presented evidence of long-standing use (since 1995) and global recognition of the scent as an identifier. Additionally, doctrine of functionality prevents protecting features that are essential to the use, cost, quality or purpose of the product (Parle Products v. J.P. & Co., 1972). But the rose smell in the tyres is clearly not a functional part of it.
Based on these findings, the Controller General issued a landmark order on 21 November 2025 accepting the application as an “olfactory mark”. This decision to accept a scientifically developed representation and to treat rose fragrance as inherently distinctive is a significant doctrinal development. This showed the willingness of Trademark Registry to expand trademark law and incorporate non-traditional marks, despite gaps procedural in the statute.
Enforcing an Olfactory Trademark
Despite being noteworthy, this has prompted questions regarding its enforceability. Although, by the recognition of an olfactory mark, the legal protection threshold has been met but enforceability is the true test of significance. So, whether courts can meaningfully decide infringement claims involving a volatile, subjective and scientifically complex sensory sign remains a question for the courts.
- Scientific dependence of olfactory trademarks
A challenge unsettled right now is the future expectations surrounding the graphical representation of olfactory marks. The acceptance of Sumitomo’s scientifically designed diagram developing using multidimensional mapping, sets a precedent. However, it remains unclear whether this approach will become a standard for future scent marks, or a less resource intensive and non-scientific representations will be enough as well.
If the Registry treats scientifically produced graphs as the standard for compliance, applicants may need expert advice of scientists and laboratory tests done for registration. This raises two concerns. Firstly, a probability exists of restricting an inclusive definition of “marks” into a tech exclusive definition with respect to olfactory marks. Consequently, this will be accessible to only well-funded entities that can afford scientific modeling and discriminate against smaller businesses and start-ups who might not be able to afford expert help. Secondly, it will create a science-based backing system, rather than a legal-based. The Trademarks Act does not statutorily mandate a mark to be represented through scientifically produced models, this requirement comes from administrative practice.
Thus, if the olfactory trademarks’ registration does become dependent on laboratory-based evidence then the system may restrict access and stifle competition. However, if no guidelines are given, applicants may deter from filing for registration due to uncertainity and lack of predictable standards.
- Understanding “Trademark Infringement” for a Scent
According to Section 29 of the Trademarks Act, 1999, infringement is established where the mark is identical or deceptively similar to an already registered mark which will result in a likelihood of confusion. While this standard is accurate in determining similarity for phonetically, visually, or structurally similar marks, it falls short in explaining similarity between two olfactory marks.
In the present scenario, the courts may rely then on consumer perception, assessing whether an average consumer with imperfect recollection perceives the two scents as similar. This aligns with the traditional analysis but is practically problematic. For olfactory marks, the perception varies according to the environment and across individuals.
Alternatively, the courts may examine the similarity based on chemical composition of the two marks. Using technologies such as VOC analysis and creating 7-dimensional vector models, is an objective approach but it risks divorcing legal analysis from consumer perception as chemically similar scents may be perceived as different and vice versa.
A third benchmark could be to treat the registered olfactory fingerprint as the authoritative mark for infringement analysis. However, the Trademarks Act does not specifically require graphical representation to serve as the sole standard for similarity, it merely requires it to guarantee clarity and accuracy at the registration stage. Courts run the risk of imposing a burden not intended by the statute if they confuse registration requirements with infringement analysis.
All three present some hurdles and therefore doctrinal clarity on the same is required to avoid inconsistency and unpredictability.
- Proving a Smell in Court
Olfactory trademarks also present acute evidentiary difficulties under the Indian Evidence Act, 1872. Volatile sensory evidence struggles to satisfy requirements such as relevance, reliability and proper preservation which are pre-requisites for admissibility.
- Degradation
Scents degrade with time due to exposure to air, temperature and humidity. They also change with exposure to other smells, and it is extremely difficult to preserve a specific smell in the environment. This raises unresolved questions: Is an aged sample admissible? How does one preserve the smell of rose scented tyres once they are on the road? What preservation methods will be sufficient to maintain integrity?
Indian jurisprudence currently provides no guidance on preserving and maintaining authenticity of a volatile sensory evidence.
- Scientific evidence and sensory evidence
Courts may be confronted with different forms of proof. Expert witness may be considered as one, but their testimony may vary and conflicting. Chemical similarity could be another one, but it may differ from human perception. Consumer surveys are a third option, but they are methodologically weak, especially when consumers do not perceive the product through smell.
Without uniform procedures governing testing conditions and reporting formats, different courts may reach divergent conclusions based on identical facts. This simply undermines the value of trademark protection.
- The Risk of over-protection and under-protection
In the absence of guidance on specific standards for enforcement, a low standard for similarity may allow proprietors to monopolize broad scent categories and that might stifle competition. On the other hand, an overly technical standard may render infringement impossible to prove. Hence, a balanced approach between market freedom and brand protection needs to be taken.
International Jurisprudence
India’s recognition of an olfactory trademark is not in isolation, it has placed itself within a group of jurisdictions that have recognized scented marks before, although with varying degrees of caution. An overview of the cases indicate that registration might be theoretically possible, but the frequency remains less due to enforceability challenges.
The Court of Justice of the European Union in Ralf Sieckmann v. Duetches Patent-und Markenamt restricted registration of an olfactory trademark due to its inability to satisfy the representational requirement. CJEU rejected written descriptions, scented samples and chemical formula for being inadequate to provide clarity, precision, objectivity, durability and accessibility.
Conversely, the United States has allowed a few olfactory trademarks based on non-functionality and distinctiveness as the key criteria. In spite of this, jurisprudence remains sparse, and courts lack standards to assess similarity.
The United Kingdom recognized the Sumitomo’s rose-scented tyre marks as its first olfactory mark in 1990s, based on written descriptions. Even so, there haven’t been clear standards set and only a handful of registrations have taken place.
Therefore, international jurisprudence shows that despite India’s progress in recognizing a smell mark, the main obstacle still remains. These marks run the risk of being symbolically innovative but practically unenforceable in the absence of clear governing standards and procedure.
Conclusion
Indian trademark law has shown significant development by accepting its first olfactory registration. This reflects doctrinal flexibility and technological adaptability, but its enforcement still remains an issue. Existing statutory framework is ill equipped to address the challenges of similarity assessment, evidentiary reliability and procedural clarity. Comparative experience demonstrates that recognition of scented marks often outpaces the development of enforcement standards.
Finally, acceptance of an olfactory trademark should be seen as a beginning point rather than the end outcome. India must create logical regulatory standards specific to scented marks, whether through judicial innovation or legislative clarification, in order to keep such recognition from remaining symbolic. Ultimately, instead of being isolated novelties in the trademark register, these can serve to be useful instruments in brand protection.
Author: Aadya Mishra
Juris Centre 