On November 21, 2025, India achieved a landmark milestone in intellectual property law when the Controller General of Patents, Designs and Trade Marks accepted the country's first olfactory trademark i.e., a “floral fragrance/smell reminiscent of roses as applied to tyres” filed by Japanese company Sumitomo Rubber Industries Ltd. This groundbreaking decision opens a new frontier for non-traditional trademarks in India, positioning the country alongside select jurisdictions worldwide that recognize sensory branding beyond visual and auditory marks.

The Applicant and the Mark

Sumitomo Rubber Industries Ltd., a Japanese tyre manufacturer headquartered in Kobe, filed trademark application No. 5860303 on March 23, 2023, seeking registration for “Floral Fragrance / Smell Reminiscent of Roses as Applied to Tyres” under Class 12 (vehicles and tyres) of the Nice

Classification system on a “proposed to be used” basis.

The company has a long history with this innovation. The company began infusing a rose-like floral fragrance into its tyres in 1995 as part of its product development and innovation strategy. This same scent was previously registered in the United Kingdom in 1996 under trademark number UK00002001416, making it the first smell mark ever approved in the UK. The mark represents a distinctive departure from conventional tyre products, which are typically associated with the smell of rubber. By incorporating a rose fragrance, a scent bearing no functional relationship to the product, Sumitomo created an arbitrary and inherently distinctive identifier that could serve as a source indicator for its tyres.

Legal Framework: The Indian Trade Marks Act, 1999

Under the Trade Marks Act, 1999, two key provisions formed the cornerstone of the smell mark analysis:

Section 2(1) (zb) defines a “trade mark” as “a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others”. This inclusive definition extends beyond traditional word and device marks to potentially encompass non-conventional identifiers, provided they satisfy two fundamental requirements: (1) capability of graphical representation, and (2) distinctiveness.

Section 2(1) (m) provides an inclusive definition of “mark”, stating it “includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof”. The inclusive nature of this definition (“includes”) suggests the legislature intended flexibility to accommodate evolving forms of commercial identification beyond those explicitly enumerated.

However, the Trade Marks Rules, 2017, particularly Rule 2(1) (k), define “graphical representation” as representation of a trademark “in paper form”. This requirement, while accommodating sound marks through musical notation and shape marks through drawings, presented a formidable challenge for olfactory marks, which by their very nature lack visual form.

Statutory Hurdles: Objections Raised

The Trade Marks Registry initially objected to Sumitomo's application on the following two fundamental grounds, issuing an examination report in August 2023:

  • Lack of Distinctiveness Under Section 9(1)(a)

Section 9(1)(a) of the Trade Marks Act provides an absolute ground for refusal of registration, stating that marks “which are devoid of any distinctive character, that is to say, not capable of distinguishing the goods or services of one person from those of others” shall not be registered. The Registry questioned whether a smell could function as a source identifier and whether consumers would perceive the rose fragrance as indicating the commercial origin of the tyres rather than merely as a pleasant product characteristic.

Distinctiveness in trademark law serves the essential function of enabling consumers to identify the source or origin of goods and services. For a mark to be distinctive, it must be capable of distinguishing one person's goods from those of others in the marketplace. This can be achieved either through inherent distinctiveness (where the mark is naturally distinctive) or acquired distinctiveness (where the mark has gained distinctiveness through extensive use and consumer association).

  • Absence of Graphical Representation Under Section 2(1) (zb)

The second and perhaps more challenging objection concerned the mandatory requirement of graphical representation. Unlike visual marks (which can be depicted through images) or sound marks (which can be represented through musical notation), smells present unique representational difficulties. The Registry needed to be satisfied that the smell could be represented in a manner that would enable authorities and the public to understand precisely what was being claimed as a trademark.

The resolution of the graphical representation challenge came through an innovative interdisciplinary approach combining law and science. Given the complexity and novelty of the issues involved, the Registry appointed a senior intellectual property practitioner, as amicus curiae (friend of the court) to assist in adjudication.

Working with the amicus curiae, three professors from the Indian Institute of Information Technology (IIIT), Allahabad namely Pritish Varadwaj, Neetesh Purohit, and Dr. Suneet Yadav developed a groundbreaking scientific model for representing the rose-like smell. Their approach utilized a seven-dimensional olfactory vector based on fundamental smell dimensions.

Following are the seven fundamental dimensions that were identified:

  1. Floral - The dominant note, representing the rose-like floral quality
  2. Fruity - Fruity undertones present in the scent
  3. Woody - Woody notes contributing to the fragrance profile
  4. Nutty - Nutty characteristics detected in the smell
  5. Pungent - Sharp or pungent elements
  6. Sweet - Sweet aromatic qualities
  7. Minty - Minty or cool aspects of the scent

This model represented the rose scent as a vector in seven-dimensional space, with each dimension having a specific intensity value that together created a unique “digital fingerprint” or “olfactory signature” of the rose fragrance. The graphical representation consisted of a mathematical plot showing the relative strength of each dimension, enabling anyone examining the representation to understand precisely which smell was being claimed. Reproduced below is the 7-Dimensional Olfactory

Vector Model for Rose Scent:

Beyond graphical representation, the Registry conducted a thorough analysis of whether the rose scent possessed the requisite distinctiveness to function as a trademark. The Registry found that the rose fragrance was inherently distinctive because of its arbitrary relationship with tyres. The scent of roses bears no logical, functional, or natural connection to tyres, which are ordinarily associated with the smell of rubber. This arbitrary pairing created immediate distinctiveness as when consumers encounter tyres with a rose fragrance, they would not perceive the scent as describing the nature, quality, or characteristics of the product, but rather as identifying its source.

Also, Sumitomo successfully argued that the scent of roses is universally recognizable and capable of being easily imagined. The company even invoked Shakespeare's famous line from Romeo and Juliet: "A rose by any other name would smell as sweet," emphasizing that the rose fragrance is distinctive, well-known, and immediately identifiable across cultures. The Registry accepted that "there is no smell which parallels the smell of roses and therefore, the moment we say, 'the smell of a rose', it is clear to the perceiving public what the smell is".

After considering extensive evidence, scientific reports, legal arguments, and international precedents, Controller General, Dr. Unnat P Pandit, issued a landmark order on November 21, 2025. The Controller General's order noted: “The scent of roses bears no direct relationship with the nature, characteristics, or use of tyres and is, therefore, arbitrary in its application to such goods”. The Registry further concluded that the rose scent would effectively function as a source identifier. The order stated: "When a vehicle fitted with tyres containing the present smell passes by, a customer perceiving the smell in question will have no difficulty in forming an association between the goods (tyres) and the source of the goods (the Applicant)".

Based on these findings, the Controller General directed the Registry to accept and advertise the trademark application under Section 20 of the Trade Marks Act, as an "olfactory mark" along with the graphical representation and description submitted by Sumitomo.

Opportunities for Sensory Differentiation

The decision opens possibilities for businesses across numerous sectors to develop distinctive sensory profiles as brand identifiers. Automobile component manufacturers might develop proprietary scents for interior materials. Hospitality businesses could trademark distinctive aromas associated with their establishments. Retail environments might develop signature scents that customers associate with particular brands.

Challenges in Smell Mark Enforcement and Registration

Despite the breakthrough achievement, significant practical and legal challenges remain for future applicants and for enforcement of olfactory trademarks.

  1. The Evidentiary Burden: Unlike visual marks, which can be compared through photographs, or sound marks, which can be analyzed through recordings, smell marks present unique evidentiary challenges. Determining whether a competitor's scent infringes a registered smell mark requires chemical analysis, expert testimony from perfumers and chemists, and potentially consumer perception studies.
  2. Olfactory Perception Variability: Human perception of smell varies significantly among individuals based on olfactory sensitivity, age, prior exposure to similar scents, cultural background, and individual preferences. This subjectivity raises questions about whether consumers would reliably recognize and remember a particular scent as identifying a source.

Conclusion: Expanding the Boundaries of Trademark Protection

The acceptance of Sumitomo Rubber Industries' rose-scented tyre as India's first olfactory trademark represents a significant evolutionary moment in the nation's intellectual property jurisprudence. The decision reflects a policy determination that trademark protection should accommodate innovative forms of commercial identification that satisfy the foundational criteria of representability and distinctiveness. As India continues developing as a global innovation hub and expanding its participation in international commerce, decisions like this will prove increasingly important in attracting investment, fostering innovation, and establishing India as a sophisticated and forward-thinking intellectual property jurisdiction.

Authors:

Rahul Bagga (Partner)

Shashank Anand (Senior Patent Engineer)

Kyra Sinha (Intern)

Disclaimer: The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.