Scent as a Sign: The Legal Labyrinth of Olfactory Trademarks in India and Beyond

 

I. Introduction

Trademark law has always been a visual regime. Logos, words, and shapes tell consumers at a glance who made a product. Yet branding today is far more layered, think of the signature scent of a Singapore Airlines cabin, the studied “new-car smell” of a luxury hatchback, or the fresh-grass aroma on a can of tennis balls. In this multisensory marketplace, the law’s visual bias starts to look less like a legal inevitability and more like a policy habit that nobody has challenged hard enough.

Non-traditional trademarks, sounds, colours, shapes, holograms, and, most intriguingly, smells, push back against that habit. An olfactory mark tests the core rationale of trademark law: that a sign can distinguish one commercial source from another. Indian trademark doctrine is not philosophically opposed to that idea. The Trade Marks Act, 1999 asks only that a mark be “capable of distinguishing” and “graphically representable.”[1] It does not, anywhere, say that a smell cannot be a mark. Yet India has never registered a single smell mark, and the IP Office has no established protocol for examining such an application.

This article argues that Indian law is conceptually open to olfactory trademarks but procedurally unprepared for them. Drawing on practice in the United States, the European Union, and the United Kingdom, and anchoring the analysis in the TRIPS framework, it maps how the Indian regime might evolve from a visual-centric system to one that can accommodate a scent as a legitimate sign of origin. The central argument is that targeted amendments to the Trade Marks Act, 1999 and the Trade Marks Rules, 2017, mirroring the EU’s shift away from strict graphic representation, are both feasible and necessary.

II. What Is a Smell Mark?

An olfactory or smell mark is a scent used to identify the commercial source of goods or services rather than to improve or constitute the product itself. Just as a red-lacquered sole signals Christian Louboutin, a particular bouquet could, in principle, signal a specific brand of thread, tyres, or retail interiors. The innovation is not the scent; it is the mental link between that scent and a particular producer.

The critical distinction is between a scent that is the product and one that identifies the producer of the product. A perfume’s fragrance cannot be trademarked as a brand signal because the scent is exactly what is being sold. But a floral aroma applied to sewing thread, where no one buys the thread for its smell, can function as a badge of origin. The classic example is Celia Clarke’s “fresh, floral fragrance reminiscent of Plumeria blossoms” applied to embroidery yarn and stitching thread.[2] The scent had nothing to do with the utility of the thread; it was purely a marker, one that consumers came to associate with Clarke’s products alone.[3]

This distinction tracks a broader question in non-traditional trademark law: the law is less concerned with what the sign is and more concerned with what it does. If a smell has acquired distinctiveness and functions as a badge of origin rather than a product feature, it satisfies the doctrinal baseline. The challenge, as the following sections show, is procedural rather than philosophical.

III. The International Legal Landscape

A. United States

The United States was the first jurisdiction to formally recognise a smell mark. The landmark case is In re Clarke, 17 USPQ2d 1238 (TTAB 1990), in which the Trademark Trial and Appeal Board upheld registration of Clarke’s floral scent for sewing thread and embroidery yarn.[4] The USPTO had initially refused the application; the TTAB reversed, holding that a scent could be a valid trademark provided it met the standard requirements of distinctiveness and non-functionality.

The legal foundation lies in the Lanham Act, which defines a trademark as “any word, name, symbol, or device” capable of identifying the source of goods.[5] In Qualitex Co v Jacobson Products Co, 514 US 159 (1995), the Supreme Court confirmed that this formulation is broad enough to include colour, and, by extension, other non-visual signs.[6] But the Lanham Act’s openness is paired with a practical constraint: functionality. A scent cannot be monopolised as a trademark if it serves a functional purpose in the product. A citrus smell on a cleaning product is functional; the cinnamon scent on a tyre, refused in In re Crank (TTAB 2009), was similarly held to be functional.[7] The USPTO’s Trademark Manual of Examining Procedure lists smell marks as registrable in principle,[8] but in practice Clarke’s floral scent remains the most cited example[9], a measure of how rare such registrations still are.[10]

B. European Union

The EU’s path was initially far more restrictive. In Ralf Sieckmann v Deutsches Patent- und Markenamt, Case C‑273/00, the ECJ considered an application for a “methyl cinnamate” scent described as “balsamically fruity with a slight hint of cinnamon,” supported by a chemical formula and a physical sample.[11] The Court held that none of these, alone or in combination, satisfied the graphic representation requirement under Directive 89/104/EEC. A chemical formula was not intelligible to the average examiner; a written description was not sufficiently precise; an odour sample was not durable.[12] The effect was a near-total block on smell-mark registration in Europe for over a decade.

The regime changed with EU Trade Mark Regulation 2017/1001, which replaced the graphic representation requirement with a more practical standard: that a sign be “clear, precise, self-contained, easily accessible, intelligible, durable and objective.” This opened a narrow but real door. An earlier example of what was possible even under the old regime is the OHIM registration of the “smell of fresh-cut grass” for tennis balls by Vennootschap onder Firma Senta Aromatic Marketing.[13] That registration, granted on the basis that the scent was a distinctive, non-functional feature distinguishing the product line, illustrates how a flexible standard, properly applied, can accommodate olfactory marks.[14]

C. United Kingdom

Post-Brexit, the UK follows the spirit of the EU’s “clear and precise” standard under the Trade Marks Act 1994 and the UKIPO’s guidance on non-traditional marks.[15] In practice, however, no smell mark has been successfully registered in the UK. The Office accepts that a written description alone rarely meets the standard, and remains reluctant to rely on physical samples whose permanence and objectivity are difficult to verify.[16] This cautious approach offers a lesson for India: legal flexibility does not automatically translate into registration. If examination practice remains anchored in visual-centric expectations, the door that the law opens will stay functionally shut.

D. TRIPS Agreement

At the multilateral level, Article 15 of TRIPS provides the broadest doctrinal support for olfactory marks. It defines a trademark as “any sign, or any combination of signs, capable of distinguishing the goods or services of one undertaking from those of other undertakings,” and explicitly permits, but does not require, member states to limit registrability to visually perceptible signs.[17] TRIPS does not mandate a visual regime; it leaves space for smell, sound, and other non-traditional marks.[18] India’s absence of smell-mark registration is therefore not a treaty-compliance issue; it is a domestic policy and drafting gap.

IV. The Position Under Indian Law

A. Trade Marks Act, 1999

Indian trademark law is governed by the Trade Marks Act, 1999 and the Trade Marks Rules, 2017. Section 2(1)(zb) defines a “trade mark” as “a mark capable of being represented graphically and capable of distinguishing the goods or services of one person from those of others.”[19] This two-pronged definition, distinctiveness plus graphical representability, has driven registration practice since the Act came into force. Section 2(1)(m) explains “mark” broadly to include devices, brands, names, words, letters, numerals, shapes, packaging, and combinations of colours, or any combination thereof.[20]

Smell does not appear in this list. But the phrase “any combination thereof” creates a conceptual space. Commentators such as Narayanan and Padmanabhan have read the definition as flexible enough to accommodate non-traditional signs, provided they meet the distinctiveness and representability tests.[21] Functionality concerns arise implicitly under Section 9(1), which bars registration of marks that merely describe the goods or are “not distinctive,” and Section 11, which allows refusal on relative grounds.[22] The practical barrier is the phrase “capable of being represented graphically.” This mirrors the pre-2017 EU position and raises the same questions as Sieckmann: how does one draw a scent? The Indian IP Office has developed no protocol for accepting chemical formulae, chromatographic graphs, written descriptions, or physical samples as adequate representations of a smell.

B. Trade Marks Rules, 2017

Rule 26 requires that each application contain a representation of the mark in a manner that allows clear reproduction and searchability.[23] For logos and words this is straightforward. For smells, there is no provision at all.[24] This silence is not merely technical, it reflects a normative choice to stay within the comfort zone of visual representation. The IP Office’s effective practice, as of 2026, is to treat smell-mark applications as outside the practicable ambit of the registration system, which is why no such mark has been registered in India.[25]

C. The Gap Between Doctrine and Procedure

The doctrinal gap is subtle but important. The graphic-representation requirement in Section 2(1)(zb) is a condition of registration, not a condition of trademark-hood. The law acknowledges that a scent can distinguish goods; the barrier is procedural, not philosophical. Scholars including Ananth Padmanabhan and V K Ahuja have argued that the 1999 Act’s broad definition is flexible enough to accommodate olfactory marks, provided the representation requirement is re-interpreted or re-drafted.[26]

Two legislative routes are available. The first is to remove or modify the “graphical representation” requirement, as the EU did in 2017, and instead require that olfactory signs be represented in a manner that is clear, precise, durable, and objective. The second is to amend the Rules explicitly to permit a written description, a chemical or sensory profile, and, where technically feasible, an archival-quality reference sample. Neither route demands a wholesale overhaul of trademark doctrine.

V. Key Doctrinal Challenges

Three doctrinal challenges stand between Indian law and a functional smell-mark regime.

The first is graphical representation. How does one depict a smell in a way that is stable, searchable, and enforceable? Chemical formulae, written descriptions, chromatographic graphs, and physical samples have all been tried and found wanting in Sieckmann. The EU’s 2017 Regulation points toward a multi-modal approach: a written description paired with a standardised olfactory-coding reference and, where available, a stable industry-format sample.[27] This would satisfy a “clear, precise, durable, objective” standard without reverting to the fiction that all marks must be visually fixed.

The second is distinctiveness. Most smells are either generic, vanilla, lavender, citrus, or descriptive of the product. A floral scent on sewing thread is surprising enough to register in the mind; a lavender scent on lavender soap is not.[28] Indian law already requires inherent distinctiveness or acquired distinctiveness through use under Sections 9 and 11. The challenge for olfactory marks is evidentiary: demonstrating that consumers in India associate a particular scent with a particular source rather than perceiving it as a product feature. This demands empirical evidence, consumer surveys, market research, evidence of long use, that examination practice has not yet been designed to process.[29]

The third is functionality. US courts have long held that a feature cannot be monopolised as a trademark if it is “functional”, if it affects the cost, quality, or utility of the product.[30] Applied to smells, this bars registration where a scent primarily masks unpleasant odours, attracts customers for reasons unrelated to source identification, or improves product performance. Only where the scent is incidental to the product’s function and central to source identification can it qualify. Indian courts have not yet articulated a distinct functionality doctrine for smells, but the principles of unfair competition and the existing Section 9 framework suggest that a similar line could be drawn without much doctrinal stretching.

VI. Suggestions for India

India should look to the EU’s 2017 reform rather than starting from scratch. The shift from “graphic representation” to a “clear, precise, self-contained, durable and objective” standard in EU Regulation 2017/1001 offers a pragmatic template.[31] Amending Section 2(1)(zb) of the Trade Marks Act to adopt this formulation would bring Indian law into doctrinal alignment with the EU, remove the conceptual barrier, and leave space for smell-specific examination practice to develop.

Rule 26 of the Trade Marks Rules could be supplemented with a dedicated provision for olfactory marks, allowing a written description of the scent, a chemical or sensory profile (formula, chromatographic data, or standardised olfactory codes), and, where technically feasible, an archival-quality physical sample deposited under controlled conditions. This approach is consistent with Australia’s Trade Marks Act 1995, which accepts non-traditional marks on a case-by-case basis provided they can be clearly described and reproduced.[32] Australia’s cautious but open practice demonstrates that an Anglo-Commonwealth legal system can absorb olfactory registration without undermining the reliability of the register.

Domestically, the National IPR Policy 2016 calls for modernising IP laws to keep pace with technological and commercial change.[33] Scholars including Shamnad Basheer and the contributors to Create, Copy, Disrupt: India’s Intellectual Property Dilemmas have argued that Indian IP law must move beyond a text-based or visual-centric outlook.[34] The case for amending the Trade Marks Act and Rules to accommodate smell marks in a structured, non-arbitrary manner sits comfortably within this reform impulse.

VII. Conclusion

Olfactory trademarks are not a curiosity; they are a genuine extension of trademark law’s core function. The United States, the European Union, and the United Kingdom have each, in different ways, worked through whether and how to make room for smell marks in the register. The common thread across these jurisdictions is that the conceptual case for olfactory protection is sound, what has held the law back is the practical difficulty of representing a smell in a stable, searchable, enforceable form. India is in precisely that position today: philosophically open, procedurally blocked.

The solution lies not in a radical rethinking of trademark doctrine but in targeted, carefully drafted amendments that translate the law’s existing flexibility into a workable examination system. Scent, after all, is one of the most powerful triggers of recognition and memory that humans possess. There is no principled reason why it should remain the one sense that the law of brands refuses to acknowledge.

References

[1] Trade Marks Act 1999, ss 2(1)(m), 2(1)(zb) (India).
[2] In re Clarke, 17 USPQ2d 1238 (TTAB 1990).
[3] P Narayanan, Law of Trade Marks and Passing Off (Eastern Law House, 7th edn, 2018) 112; Ananth Padmanabhan, Intellectual Property Rights: Infringement and Remedies (LexisNexis India 2021) 189.
[4] In re Clarke (n 2).
[5] Lanham Act 1946, 15 USC § 1127 (USA).
[6] Qualitex Co v Jacobson Products Co, 514 US 159 (1995).
[7] In re Crank, Serial No 76/611,482 (TTAB 2009).
[8] USPTO, Trademark Manual of Examining Procedure (2023) ch 1202.13.
[9] USPTO, Trademark Manual of Examining Procedure (n 8).
[10] Ibid.
[11] Ralf Sieckmann v Deutsches Patent- und Markenamt, Case C‑273/00 [2002] ECR I‑11737.
[12] Sieckmann (n 11).
[13] Vennootschap onder Firma Senta Aromatic Marketing, Application No 1001599 (OHIM, 1999).
[14] Senta Aromatic Marketing (n 13).
[15] Trade Marks Act 1994, s 1(1) (UK); UKIPO, Trade Mark Practice Notice on Non-Traditional Marks (2022).
[16] UKIPO, Trade Mark Practice Notice on Non-Traditional Marks (n 15).
[17] Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), art 15.
[18] TRIPS Agreement (n 17).
[19] Trade Marks Act 1999, s 2(1)(zb) (India).
[20] Trade Marks Act 1999 (n 19) s 2(1)(m).
[21] Narayanan (n 3) 112; Padmanabhan (n 3) 189.
[22] Trade Marks Act 1999, ss 9(1), 11 (India).
[23] Trade Marks Rules 2017, r 26 (India).
[24] Trade Marks Rules 2017 (n 23).
[25] IP India, Trade Marks Act 1999 and Trade Marks Rules 2017: Examination Guidelines (IP India 2017).
[26] V K Ahuja, Law of Trade Marks in India (LexisNexis, 2nd edn, 2015) ch 2.
[27] Council Regulation (EU) 2017/1001 of 14 June 2017 on the European Union trade mark [2017] OJ L154/1, art 4.
[28] In re Clarke (n 2).
[29] Trade Marks Act 1999 (n 19) ss 9, 11.
[30] Inwood Laboratories Inc v Ives Laboratories Inc, 456 US 844 (1982).
[31] Council Regulation (EU) 2017/1001 (n 27).
[32] Trade Marks Act 1995 (Cth), s 6; IP Australia, Trade Mark Examination Manual (IP Australia 2022) pt 4.
[33] Government of India, National Intellectual Property Rights Policy (DPIIT 2016).
[34] Shamnad Basheer and others (eds), Create, Copy, Disrupt: India’s Intellectual Property Dilemmas (Oxford University Press 2017) ch 7.

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CHANGE 1 — Footnote Cross-Reference Error (Critical Legal Accuracy Fix)
Original: Body text in Section III.A — “the cinnamon scent on a tyre,
refused in In re Crank (TTAB 2009), was similarly held to be
functional.[^7]” — pointed to fn7, which was the Qualitex citation.
Corrected: In re Crank body citation now points to fn7; the footnote list
has been renumbered so that:
fn7 = In re Crank, Serial No 76/611,482 (TTAB 2009) [was fn8]
fn8 = USPTO TMEP (2023) ch 1202.13 [was fn9]
fn9 = USPTO TMEP (n 8) — back-reference corrected [was fn10]
fn10 = ibid [new consolidation]
All subsequent footnote numbers shifted accordingly.
Why: The original numbering meant a reader clicking fn7 would be taken to
the Qualitex citation rather than the Crank authority that the sentence
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CHANGE 2 — Footnote 24 Back-Reference Error (Minor Accuracy Fix)
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CHANGE 3 — Footnotes 9/10 Consolidation
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Clarke’s scent “remains the most cited example.”
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standard legal citation practice and avoids repetition.
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CHANGE 4 — Italicisation of All Case Names (Formatting)
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CHANGE 8 — Section V Doctrinal Challenge Labels
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