TMR Allows First-Ever Smell Mark to Be Advertised
The Trade Marks Registry has allowed an application for a rose-scented tyre fragrance to be advertised. This marks a historic development for India’s trademark system. The trademark request was filed by Sumitomo Rubber Industries Ltd. in March 2023 under Class 12. It seeks protection for a unique floral aroma intentionally infused into the company’s tyres.
After reviewing the applicant’s evidence and replies to objections, the Registry directed that the mark be published in the Trade Marks Journal as a proposed-to-be-used mark.
A Landmark for Non-Traditional IP in India
Protecting sensory marks, especially scents, has always been difficult. This is because:
- Smells are hard to represent graphically.
- Their distinctiveness must be proven.
- The scent must identify a brand and not serve a functional purpose.
India has never registered a smell trademark before. Therefore, this order signals that the country is now receptive to recognising non-traditional marks when they are supported with clear and precise evidence.
The Trade Marks Act does not specifically mention smell marks. Even so, the Registry relied on the broad definition of a “mark” under Section 2(1)(m). This means that signs beyond logos and words can qualify if they function as brand identifiers.
The order also aligns Indian practice with TRIPS standards, which encourage acceptance of unconventional marks if they can be clearly represented.
How the Applicant Convinced the Registry
The TMR initially objected under Sections 9(1)(a) and 2(1)(zb). It questioned the graphical representation and distinctiveness of the scent. Sumitomo Rubber overcame these objections through three strategies.
1. Scientific Representation of the Smell
Researchers from IIIT-Allahabad created a scientific visualisation of the rose fragrance. They mapped the scent using a seven-dimensional olfactory model. This method provided a measurable, repeatable, and graphical representation of the smell.
The Registry noted that this was the first time such a scientific approach was submitted in India. It may now become a reference point for future scent-based trademark applications.
2. Reference to Global Trademark Systems
The applicant highlighted that smell marks have been accepted in the US, UK, EU, and Australia. It argued that India’s inclusive trademark definition also permits protection of non-traditional signs.
3. Proof of Distinctiveness
The Trademark Registry accepted that a rose fragrance on tyres is neither functional nor common. Therefore, it can identify the commercial origin of the goods. The Registry also recorded that the scent does not give any technical or performance benefit. This helped establish that it is inherently distinctive.
The applicant further showed that consumers can notice the scent during purchase and handling, reinforcing its role as a source identifier.
TMR’s Key Finding: A Smell Can Function as a Trademark
The Registry concluded that the rose aroma satisfied two essential legal requirements:
- It can be represented graphically through scientific modelling.
- It is inherently distinctive in relation to tyres.
This is the first official acknowledgment that a smell can meet the clarity and precision requirements for trademark protection in India. The Registry also reflected the evolution of branding practices, where sound, scent, motion, holograms, and textures are increasingly used.
As a result, the application has been allowed to proceed to publication.
What This Means for Brand Owners
If registered, this could become India’s first olfactory trademark. The decision is likely to influence branding strategies across sectors such as:
- Perfumes and cosmetics
- Food and confectionery
- Consumer goods
- Automotive products
- Luxury and lifestyle industries
Experts predict a rise in sensory branding. Businesses may now explore scent, sound, and texture marks supported by scientific techniques to satisfy representation and distinctiveness requirements.
