A Rose by Any Other Name: India Registers Its First Smell Trademark via 7-D Vector Analysis

BRB Legal
Nov 22
3 min read

In a historic order that challenges the traditional boundaries of Indian Intellectual Property law, the Trade Marks Registry of India has granted registration to the country’s first "Smell Trademark."

In an order dated November 21, 2025, the Controller General of Patents, Designs and Trade Marks accepted the application by Sumitomo Rubber Industries Ltd. (Japan) for a “floral fragrance/smell reminiscent of roses as applied to tyres.”

This decision marks a paradigm shift in how non-conventional trademarks are viewed in India, moving beyond the visual to the olfactory.

The Case: Sumitomo Rubber Industries Ltd.

The application (No. 5860303 in Class 12) was initially met with significant hurdles. Under the Trade Marks Act, 1999, a trademark must satisfy two primary conditions:

Distinctiveness: It must distinguish the goods of one person from others.
Graphical Representation: It must be capable of being represented graphically.

The Registry initially objected, arguing that a smell lacks distinctiveness and cannot be drawn or written down. However, the applicant argued that they have been infusing this fragrance into their tyres since 1995 and had successfully registered the same mark in the UK as far back as 1996.

The Breakthrough: 7-Dimensional Vector Analysis

The core issue was Section 2(1)(zb) of the Act: How do you graphically represent a smell?

To solve this, the Registry appointed Shri Pravin Anand, a renowned IP litigator, as amicus curiae. He, in turn, collaborated with a scientific team from the Indian Institute of Information Technology (IIIT), Allahabad (Prof. Pritish Varadwaj, Prof. Neetesh Purohit, and Dr. Suneet Yadav).

The team developed a novel 7-Dimensional Vector Analysis. They broke down the "rose smell" into a vector within a 7-dimensional space, where each dimension represents a fundamental smell:

Floral
Fruity
Woody
Nutty
Pungent
Sweet
Minty

The Controller General accepted this scientific graph as a valid "graphical representation," noting that it was "clear, precise, self-contained, intelligible, and objective."

Why It Was Accepted

The Registry ruled that the mark was distinctive because the relationship between the goods (tyres) and the mark (rose smell) is arbitrary. Tyres naturally smell of rubber; a rose fragrance is a stark contrast that creates a strong cognitive association with the manufacturer.

As the order eloquently noted: "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 and the source."

Beyond Words: Other Non-Traditional Trademarks in India

While the "Smell Mark" is the latest entrant, Indian Trade Mark law has slowly evolved to recognise other "Non-Traditional" or "Non-Conventional" trademarks. These are marks that do not consist of standard words, logos, or numerals.

Here is a look at other non-traditional marks recognised in India:

1. Sound Trademarks

A sound mark is a trademark where a specific sound performs the function of uniquely identifying the origin of a product or service.

Requirement: Like smell marks, they must be graphically represented. In India, this is usually done by submitting the musical notations (staff notation) that record the pitch, duration, and tempo of the sound.
Famous Examples: The Yahoo! Yodel (the first sound mark granted in India), the ICICI Bank corporate jingle, and the National Stock Exchange (NSE) theme.

2. Colour Trademarks

Can you own a colour? Generally, no. However, a specific shade of colour applied to a specific aspect of a product can be registered if it has acquired "secondary meaning"—meaning consumers instantly identify the brand solely by that colour.

Requirement: The applicant must prove that the colour is not functional (e.g., red for fire extinguishers is functional) and is solely used as a brand identifier. The burden of proof for distinctiveness is extremely high.
Famous Examples: The specific purple shade of Cadbury (for chocolates) or the Louboutin "Red Sole" for high-heeled shoes (often protected as a specific position mark involving colour).

3. Shape and 3D Trademarks

The shape of a product or its packaging can be a trademark if the shape is unique to the brand and not merely a result of the product's function.

Requirement: Under the Trade Marks Act, 1999, the shape cannot be registered if it:
- Results from the nature of the goods themselves.
- Is necessary to obtain a technical result (functional).
- Gives substantial value to the goods.
Famous Examples: The shape of the Coca-Cola contour bottle, the triangular shape of Toblerone chocolate, and the shape of the Zippo lighter.

Conclusion

The acceptance of the "Rose Smell" for tyres proves that Indian IP law is dynamic and ready to embrace modern branding strategies. By accepting a 7-D vector graph as a valid representation, the Registry has set a global precedent for how olfactory marks can be scientifically standardised and legally protected.