OLFACTORY TRADEMARKS: CAN SMELL BE REGISTERED UNDER  INTELLECTUAL PROPERTY RIGHTS?  

INTRODUCTION  

“Trade Mark” means a mark capable of being represented graphically and which is capable of  distinguishing the goods or services of one person from those of others and may include shape  of goods, their packaging and combination of colours.[1] Non-traditional trademarks, also known  as non-conventional trademarks, are forms of intellectual property that extend beyond  traditional elements like words, logos, and symbols to include unique identifiers such as  sounds, colours, scents, shapes, textures, tastes, motion, and holograms.[2] 

An olfactory or smell mark is the unique scent capable of identifying a product. A scent  trademark is a type of trademark that protects a distinctive and non-functional smell associated  with a product or service.[3] A scent trademark can help brands to differentiate through sensory  signatures, beyond logos and words. Recently, the Trade Marks Registry of India has accepted  a Smell Trademark for “Floral Fragrance Smell Reminiscent of Roses as applied to tyres”  backed by a 7-Dimensional Vector analysis of the Scent. 

UNDERSTANDING SMELL TRADEMARKS 

Traditionally, we are well-accustomed with Trademarks like brand logos, slogans, sound, shape  and words however intangible trademark like a scent or smell appears to be absurd or ridiculous at first but now it is becoming an eventual reality of the world. Olfactory Trademark is already  making leads in the Trademark Industry. Just like pictures, scent can hold profound memory in  mind of people which is often used for brand association and recognition. A distinctive scent  can become a potent way to set a brand apart from competitors. These distinct smells are  trademarked as ‘olfactory marks.’[4] A remarkable example in the field of scent trademark is  Hasbro’s trademark of their famous Play-doh. The oldest recorded smell trademark was  granted in 1990 – for a “high-impact, fresh, floral fragrance reminiscent of Plumeria blossoms”  used for sewing/embroidery thread in the United States.  

LEGAL POSITION IN INDIA  

In India, the Indian Draft Manual of Trade Marks, 2015 provides the most definitive guidance  regarding the status of non-traditional trademarks since the Trade Mark Act, 1999, does not  explicitly address them. The Manual follows the standards established in the Ralf Sieckmann  v. Deutsches case and asserts that: “Consumers of such fragranced goods are unlikely to  attribute the origin of the products to a single trader based on the fragrance. Whatever may be  the case, for purposes of registration as a trade mark, unless the mark is ‘graphically  represented’ it will not be considered to constitute as a trade mark.” Moreover, product features  that serve a functional purpose are not eligible for protection under trademark law. This is to  prevent monopolies over essential product features that could stifle competition. Another  challenge is the subjectivity of the perception of smell and its distinctiveness.  

On November 21, 2025, the Controller General of Patents, Designs and Trade Marks  (CGPDTM) accepted Sumitomo Rubber Industries Ltd.’s application for a “floral  fragrance/smell reminiscent of roses applied to tyres” (Class 12), marking India’s first olfactory  trademark cleared for advertisement under Section 20 of the Trade Marks Act, 1999.[5]  The  CGPDTM ruled the mark satisfies graphical representation via a novel 7-dimensional scientific  olfactory vector (floral, fruity, woody, nutty, pungent, sweet, minty), deemed clear, precise,  self-contained, intelligible, and objective. It found the scent inherently distinctive, non descriptive, and non-functional, aligning with Siekmann criteria while innovating for India.[6] 

India moves a step closer to jurisdictions like the EU and US where non-traditional marks  (sound, motion, hologram, smell) have slowly gained recognition. 

INTERNATIONAL PERSPECTIVE  

Across Jurisdictions, olfactory trademarks have been growing steadily. The United States is  often attributed as one of the earliest countries to experiment with Scent Marks. The Lanham  Act, which governs the federal trademark laws in the United States, qualifies a scent to be  trademarked if it is distinct and non-functional in nature. In re Clarke, 17 U.S.P.Q. 2d 1238  (TTAB 1990), is a landmark decision by the United States Trademark Trial and Appeal Board  that established the registrability of scent marks as trademarks. The case involved Celia Clarke  who owned a business called Osewez, which produced embroidery yarn and threads with a  floral scent to it. The Board found that the scent had acquired distinctiveness through long term use and recognition in the marketplace and that it was not functional because it did not  affect the product’s use or quality.[7] 

In Europe, the situation surrounding smell trademarks has been more restrictive. The landmark  judgement in Ralf Sieckmann v. Deutsches Patent- und Markenamt (C-273/00) 2002 was a  pivotal decision in European trademark law concerning the graphical representation of non conventional trademarks, particularly olfactory signs. The case involved an application by Ralf  Sieckmann to register a scent mark based on methyl cinnamate, described as “balsamically  fruity with a slight hint of cinnamon.” The Court ruled that the proposed representations of  chemical formula, written description, and physical deposit of a scent sample failed to meet the  requirement of being sufficiently clear, precise, self-contained, easily accessible, intelligible,  durable, and objective. Consequently, the Court concluded that these representations did not  satisfy the graphical representation requirement under Article 2 of Directive 89/104/EEC,  thereby rejecting the registration of the olfactory trademark. This decision established that even  if a sign is not visually perceptible, it can only be registered if it can be represented graphically  in a manner meeting the specified criteria.[8] Subsequently, the European trademark regime was  reformed. Regulation (EU) 2015/2424 and related instruments removed the strict “graphical  representation” requirement and replaced it with a technology-neutral test, allowing signs to be  represented in any appropriate form. This included sound files or multimedia formats, provided  legal certainty is maintained.[9] 

KEY CHALLENGES WITH SMELL TRADEMARKS  

The debate around olfactory trademarks is driven mainly by the practical difficulties involved  in its graphical representation and subjectiveness as against the traditional trademarks. There  is no standard global instrument for such representation of scent. India recently used a 7- Dimensional vector for the analysis of a Rose like scent used in Sumitomo Rubber Tyres. The  graphical representation was prepared by 3 inventors of IIIT Allahabad using the technology  developed at the institute using 7 fundamental smells namely Floral, Fruity, Woody, Nutty,  Pungent, Sweet and Minty.[10] Another country may use a completely different scale for  classification therefore, it stands to be a challenge in way of smell trademarking. Moreover,  each person has a different perception for different smell. What smells “fresh” or “pleasant” to  one group might be unpleasant to another. The other challenge is in the form of functionality.  Trademark law generally refuses protection to features that are essential to the use of a product  or is an inherent quality of the same such as fragrances in air fresheners and colognes. Allowing  exclusive rights over such functional features would unfairly limit competition.  

SHOULD INDIA EXPAND ITS SMELL TRADEMARKING?  

As Brand differentiation is becoming more creative in this growing economy, there is a need  for recognising the same. Brands are using distinct signature smells for their products to  stimulate psychological reaction in the minds of the buyer which eventually boosts  repurchasing. In such situations, companies will try to secure their intellectual property rights  regarding olfactory trademarks. With a growth of fragrance and perfume industries in India, which uses its native plants and herbs to produce geographically rare scents, use of technology  to trademark the rare perfumes in its name can help set a foot ahead in global competition and  avoid the theft of its indigenous heritage. By expanding its smell trademarking, India would  compete globally in terms of international branding practices and grow its intellectual property  assets. There would also be emergence of new companies and law firms specialised in  Olfactory Trademarking thus enriching India’s Intellectual Property Industry.  

The Government can take a step ahead and introduce new syllabus and curriculums of  Olfactory Trademarking for the law schools. However, we must move forward with due care  and diligence so as to keep common fragrances accessible to small-scale industries or else it  may harm the country’s start-ups and entrepreneurship.  

CONCLUSION 

Olfactory Trademarks intersects the domain of technology, law and human psychology. It is  the future of non-traditional trademarks. While traditional systems focused on names, logos  and slogans, modern branding strategized sensory stimulations for marketing. Even personality,  poses, dialogues and names had been trademarked in the history of intellectual property rights.  Be it Trump’s “Make America great again” or Paris Hilton’s “That’s Hot”, trademarking  industries had opened the scope to register unusual trademarks. The question of whether a smell  can be registered as a trademark forces us to reconsider long-held assumptions about what a  “mark” really is. For a long time, trademarks had been considered as an intangible asset. India  has historically followed a conservative approach towards trademarks but the recent acceptance  of rose-scented tyres mark the significant shift towards recognising non-traditional trademarks.  Technological advancement is making it possible to graphically analyse different scents using  7-Dimensional vectors. In future, the countries across the globe will be taking inspiration from  India’s success in Olfactory Trademarking. Going by the traditional definition of intellectual  property rights, an intriguing question can be- Is fragrance really an output of one’s intellect so  as to be claimed under the intellectual Property Rights? People may say that the use of intellect  was in deciding to integrate the smell in a particular product but the debate goes on. 

REFERENCES

1. Trade Marks Act, 1999; section 2(1)(zb). 
2. Wikipedia contributors, “Non-Conventional Trademark” (Wikipedia, October 24, 2025)  https://en.wikipedia.org/wiki/Non-conventional_trademark accessed on 07th December 2025. 
3. Ross AA, “What’s That Smell? – The Trademark Place” (The Trademark Place, December 6, 2023)  https://thetrademarkplace.com/whats-that-smell/ accessed on 07th December 2025.
4. “Law and ‘Odor’: Establishing a Case for Olfactory Marks in Indian IP Landscape – NLIU Cell for Studies in  Intellectual Property Rights” (September 30, 2023) https://csipr.nliu.ac.in/copyright/law-and-odor-establishing a-case-for-olfactory-marks-in-indian-ip-landscape-part-i/ accessed 07th December 2025. 
5. Editor, “CAM Acts as Indian Legal Counsel to Sumitomo Rubber in India’s First Accepted Olfactory Mark |  SCC Times” (SCC Times, November 24, 2025) https://www.scconline.com/blog/post/2025/11/24/cam-advises sumitomo-rubber-first-smell-mark-india-2025/ accessed on 07th December 2025.
6. Government of India, Ministry of Commerce & Industry – Order No. TMR/DEL/SCH/2025/16.
7. In re Clarke 17 U.S.P.Q. 2d 1238 (TTAB 1990). 
8. Ralf Sieckmann v. Deutsches Patent- und Markenamt C-273/00 (2002). 
9. Regulation (EU) 2015/2424 of the European Parliament and of the Council- [Legislation.gov.uk]
10. Government of India, Ministry of Commerce & Industry- ORDER NO. TMR/DEL/SCH/2025/16.