Historic Development
On November 21, 2025, the Controller General of Patents, Designs and Trade Marks (CGPDTM) accepted India's first-ever olfactory (smell) trademark — a landmark moment in Indian IP law. The CGPDTM directed that Application No. 5860303 filed by Sumitomo Rubber Industries Ltd. for a "floral fragrance/smell reminiscent of roses as applied to tyres" in Class 12, be advertised in the Trade Marks Journal as an olfactory mark on a "proposed-to-be-used" basis.
The Legal Challenge: Why Smell Marks Are Historically Impossible
The primary hurdle in registering any trademark is graphical representation — the requirement that a mark be capable of being represented on paper in a way that allows the public and competitors to know precisely what is protected. For visual marks this is simple; for sound marks, musical notation or spectrograms suffice. Smells, however, present a unique challenge: chemical formulas represent the substance, not the smell; verbal descriptions are too subjective; physical samples deteriorate. These barriers had historically defeated all attempts to register olfactory marks globally, resulting in only a handful of successful registrations worldwide.
The Applicant: Sumitomo Rubber Industries
Sumitomo's rose-scented tyre is not new to trademark protection globally. The same fragrance was registered as the first smell mark in the United Kingdom in 1996. In India, Sumitomo pursued a multi-layered evidentiary strategy: (1) Gas chromatography and mass spectrometry to define the molecular fingerprint of the rose fragrance; (2) Expert olfactory and fragrance specialist sworn statements attesting to the uniqueness and non-functional nature of the scent; (3) Evidence of fragrance stability throughout the product lifecycle; and (4) A pioneering seven-dimensional olfactory vector developed by scientists at the Indian Institute of Information Technology (IIIT), Allahabad — mapping the rose scent along seven fundamental olfactory dimensions: floral, fruity, woody, nutty, pungent, sweet, and minty.
Pravin Anand as Amicus Curiae
Because this was entirely uncharted territory in India, the CGPDTM appointed Mr. Pravin Anand, a senior IP practitioner, as amicus curiae. His detailed submissions bridged the gap between legal standards and sensory science, drawing on global jurisprudence from the EU, UK, and US, and his own scholarly work including the APAA article "Science, Art and Law Relating to Smell."
The Two Statutory Requirements: Met
Graphical Representation — Section 2(1)(zb): The seven-dimensional olfactory vector was held to satisfy the graphical representation requirement — providing objectivity through measurable scent-component ratios, precision through standardized dimensional values, intelligibility, clarity, and durability. The CGPDTM expressly found the model echoed the Sieckmann criteria (ECJ 2002) while enabling India to chart its own path.
Distinctiveness — Section 9: The CGPDTM found that a rose scent applied to tyres is fundamentally arbitrary. Tyres typically emit a rubber smell; a rose fragrance is entirely unexpected and non-functional — it serves no performance purpose. The stark contrast between the typical rubber odour and rose-like fragrance makes the scent capable of distinguishing Sumitomo's products as a badge of commercial origin.
Global Comparative Context
The EU continues to prohibit smell mark registration (EUIPO Guidelines: olfactory marks "not acceptable" under current technology). The US accepts scent marks for non-functional source identifiers but requires acquired distinctiveness. The UK accepts smell marks under the Sieckmann criteria. India now joins the progressive jurisdictions recognizing olfactory marks — with the added innovation of a scientifically validated graphical representation model that could serve as a model for future global practice.
Practical Implications
Businesses pursuing sensory branding strategies in India should note that the success of Sumitomo's application required: (1) a robust scientific representation model; (2) expert olfactory testimony; (3) chemical composition evidence; (4) proof of fragrance stability; and (5) a clear showing that the scent is non-functional and capable of serving as a source identifier. The bar is high — but now demonstrably achievable in India. Aswal Associates has been advising clients on non-conventional trademark strategies and can assist with olfactory mark applications for the Indian Trade Marks Registry.