The Scent of Progress: India’s Olfactory Trademark Breakthrough and Its Ripple Effect on Non-Conventional Marks

Introduction

In recent months, India’s first olfactory trademark application has been accepted, which has been a big change around for the non-conventional marks, creating an opening for other marks that were previously impossible to get a trademark. The decision to use a rose-like floral fragrance for tyres marks a progressive shift in the interpretation of the Trademark Act 1999. This blog travels and reveals intricacies of the landmark judgement, its rationale and its implications for the registration of other non-conventional trademarks in India, which includes taste, touch, sound and Motion marks.

The Sieckmann Test and its Indian Adaptation

The Sieckman judgement established a criterion for the graphical representation of smell marks. It mandated that the smell mark must be represented by means of images, lines or characters that are clear, precise, self-contained, easily accessible, intelligible, durable and objective. The bar was almost insurmountable for olfactory marks, as the chemical formulae, verbal description and samples were not sufficient.

Section 2(zb) of the Trademark Act 1999 defines a trademark as a mark which is capable of being represented graphically and capable of distinguishing the goods or services of one person from those of others, and may include goods, their packaging and a combination of colours.[i]

The description of the graphical representation,[ii] which is also accompanied by a graph, is as follows: “A complex mixture of volatile organic compounds released by the petals interacts with our olfactory receptors, creating a rose-like smell. Using the technology developed at IIIT Allahabad, this rose-like smell is graphically presented below as a vector in the 7-dimensional space wherein each 9 dimension is defined as one of the 7 fundamental smells, namely floral, fruity, woody, nutty, pungent, sweet and minty.” The graphical representation of the smell in question has been represented as a vector in 7-dimensional space.[iii]

Beyond graphical representation, the establishment of distinctiveness plays a crucial role in proving that consumers see the sign as a brand that tells them where the goods or services come from, and not just as a feature of the product.

A peculiar, sweet rose scent is not usually associated with tyres. As a result, using such a distinctive fragrance instantly sets Sumitomo’s product apart from that of its rivals. This enabled the applicant to successfully contend that the fragrance functioned as a distinct source identity rather than just being functional or descriptive of the product. The case for distinctiveness would have been far more difficult if the application had been for a perfume with a rose scent because the product category naturally had a rose scent. This deliberate decision highlighted the mark’s capacity to develop distinctiveness, which is an essential component for registration.

Implications and the “New Smell” for Other Non-Conventional Marks

The decision to allow olfactory mark by Sumitomo is not an isolated case, but it is a significant development that will inevitably influence the treatment of other non-conventional trademarks in India. It is now possible to note the new scent of progressive interpretation in the Registry that makes potential applicants optimistic and see a more direct way ahead.

Future of the Olfactory Marks

Of course, this has the highest and immediate impact on other potential olfactory mark applicants. Having a clearer understanding of the standards, brands in such industries as hospitality (signature lobby scents), retail (distinctive shop perfumes), and even other automotive or industrial industries (e.g. scented interiors of cars, lubricants with a certain scent) can now apply to be registered. This is still tough, and it needs: Protection of scent marks requires scientific rigour, and this requires investment in chemical research and judgments made by experts in order to characterise the scent in a precise and objective manner. It also requires a systematic procedure in the choice of the products or services, which ensures that the fragrance is not only handy, but it is actually something unique that can locate the commercial source. The perception of the consumer must be provided where necessary to show that, through widespread usage and high association by the masses, the fragrance has become distinctive. It is hoped that the study will trigger innovation in smell branding, and companies will create unique olfactory signatures to complement their overall brand experience.

Taste Marks: A More Complex Issue

Of the non-conventional marks, taste marks are by far the hardest. India and the rest of the world have never registered any taste mark with a significant precedent. The Sieckmann criteria are much tougher to satisfy in terms of taste. But what can one do to graphically represent a taste? Taste is a subjective experience that depends upon personal physiology, texture, and smell, whereas chemical compounds are possible. This is hard to prove since tastes serve as a unique brand identification and not a distinguishing characteristic, since the majority of tastes are inherent to the products (e.g. the flavour of a food or beverage product). However, there is some hope because of the Sumitomo ruling. A taste can be reconsidered by the Registrar to be genuinely unique, non-functional and applied to goods in the situation where such a taste is unexpected (e.g., a specific taste to a non-ingestible product or a distinctive, acquired taste to a medicine with a generic taste) and that this taste is scientifically precise (e.g. a detailed flavor profile through the use of sensory analysis and chemical markers). The key impediment will be the functionality Principle; the emphasis on scientific characterisation as a form of graphical representation can be resorted to.

Touch/Texture Marks

Touch or texture marks illustrate the characteristics of a product or its surface that are not the visual or auditory elements. These marks target the consumer’s sense of touch and incorporate features like the soft coating of a bottle, the unique rubberised grip of a device, or the peculiar fabric texture of the luxury packaging. Although Indian trademark law has not yet explicitly acknowledged this category of texture marks, the acceptance of an olfactory mark indicates that the conceptual openness may extend to this category in the future.

According to Section 2(zb) of the Trade Marks Act, 1999, a texture mark should meet two fundamental conditions: graphical representation and distinctive character. The main difficulty of touch marks is that they have to find a way how to depict the tactile feeling this is a physical and sensory experience, thus the pictorial representation of it should be clear, precise, objective, and durable, as per the Sieckmann criteria. Unlike sound or motion marks, tactile sensations cannot be captured by conventional graphical symbols alone. Nevertheless, there is a possible way that developments in technology and science may lead. The surface details of an object can be shown with a high-resolution microscopic image, material composition can be described, 3D surface can be mapped and standardized tactile descriptors used. All these can be brought together with a comprehensive written description explaining the tactile characteristics (for instance, resistance, softness, grain pattern, or elasticity) to justify the graphical representation requirement. The scientific objectivity towards which the Registry leaned in the case of the Sumitomo olfactory mark would support the acceptance of similar methodologies for texture marks.

The problem of distinctiveness is equally challenging. In the majority of cases, the texture of an object is aimed at enhancing the grip, durability, or comfort, etc. of the product. Indian trademark law follows Global Principles and it does not allow the registration of functional features or the ones that increase the value of the goods significantly. Thus, if the texture is to be a legitimate trademark, it should be a non-functional, non-related, and an unexpected one in the case of the products. One of the most important factors in this scenario would be the role of acquired distinctiveness. The applicant must prove that consumers associate that particular texture with his/her brand only. Examples of proof could be consumer surveys, long use, advertisements featuring the tactile aspect, and showing that the competitors hardly use the same textures. Relevant to this, the attempts to recognise texture as a trademark such as the velvet-textured bottle for Glaxo Group[iv] has revealed that the judges treat tactility branding skeptically but still entertain it if the mark goes beyond the functional level.

Sound Marks and Motion Marks

Sound marks such as the Yahoo! yodel or the Nokia tune[v], ICICI Jingle[vi] and motion marks such as the Nokia Connecting Hands animation or Amazon Blue Ring, when used with Echo products, have been historically less challenging in India than smell or taste marks.[vii] The reason is that this is much easier to represent graphically. Some sound marks had been registered in India in the past. These signs may be represented by musical score, spectrograms, or even exact verbal descriptions with an audio sample. Motion marks, such as a series of still images, may also be used to record a motion mark, based on the motion mark, in addition to the written justifications and video submissions; however, India has approved registrations in this category as well, although it has no direct impact on the standards of representing sound or motion marks.

Challenges and the Road Ahead

This progress has not eliminated challenges. Although it is important, the administrative decision made by the Controller General is not as decisive as a Supreme Court or a High Court decision. The exact meaning of scientific precision and objective description will likely be elucidated by subsequent case usage, and subsequent applicants can also receive a strict examination. Also, such marks are hard to maintain, demonstrate infringement, and deal with potential dilution. To illustrate this, it is impossible to have an extensive search for similar smell marks without a unified and broadly accepted olfactory classification system. To address these questions, intellectual property practitioners and the Registry will be obliged to collaborate.

Conclusion

The first olfactory trademark was registered in India, and this was a milestone in the intellectual property law in the country. It symbolises a move in the direction of a more flexible and modern understanding of legal standards, which will lead India into the world of the most modern trademark systems. Its basic concept, the possibility to have a sign that can be graphically represented by giving an accurate, objective and scientifically verifiable description, presents a blueprint to other non-conventional marks that are confronted with similar challenges, although it is referring to smell markers specifically.

This decision will definitely encourage businesses to appeal to all senses to create a branding strategy that will encourage the inventive and enhance customer experience. To make use of these new opportunities, the business needs to be proactive, and this involves extensive scientific documentation and strategy implementation. The intellectual property system in India is proving to be able to adjust to protect the most creative and distinct brand identities, including those that entice the most sensitive and evocative new smell of progress as the economy of India continues to diversify and create more innovations.[viii]

Author:– Saurav,  in case of any queries please contact/write back to us at support@ipandlegalfilings.com or   IP & Legal Filing.

[i] W. P. Fisher, Trademark Primer, Harv. L. Sch. Cyberlaw Program (2001), https://cyber.harvard.edu/metaschool/fisher/domain/tm.html

[ii] Rhythma Kaul, A tyre by any other name can’t smell as rose-like- The story of India’s first olfactory trademark THE PRINT (Nov. 25, 2025)

[iii] Controller General of Patents, Designs and Trade Marks, Order Accepting Olfactory Mark Application No. 5860303 (Sumitomo Rubber Indus. Ltd. – Floral Fragrance/Smell Reminiscent of Roses as Applied to Tyres ), Trade Marks Registry (Nov. 21, 2025), https://images.assettype.com/barandbench/2025-11-21/qnfoiqwo/Smell_mark_Order.pdf

[iv] Glaxo Group Ltd v. Office for Harmonisation in the Internal Market, Case T-88/00, EU:T:2002:274.

[v]Yahoo awarded India’s first sound mark, Nokia in queue, LIVE MINT (Sept. 17, 2008), https://www.livemint.com/Home-Page/5z2B1NQUy3YyPkpRDp789M/Yahoo-awarded-India8217s-first-sound-mark-Nokia-in-queue.html

[vi] ICICI Jingle Now Trademarked, SPICYIP (Mar. 28, 2011), https://spicyip.com/2011/03/icici-jingle-now-trademarked.html

[vii] Zippo Shape Mark Protected By Indian High Court, SPICYIP (Aug. 15, 2006), https://spicyip.com/2006/08/zippo-shape-mark-protected-by-indian.html

[viii]  Agreement on Trade-Related Aspects of Intellectual Property Rights art. 15, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 299