Acceptance Of Olfactory Marks In India: Challenges And Way Forward
Amit Pandey & Ajay Chaurasia
27 March 2026 8:00 PM IST
The administration of trademarks in India is vested in the Controller General of Patents, Designs and Trade Marks (CGPDTM), functioning under the Department for Promotion of Industry and Internal Trade (DPIIT), Ministry of Commerce and Industry. Jurisprudence on trademark has traditionally centered on visually perceptible marks; recent developments indicate a gradual openness towards the non-conventional trademarks, including olfactory (smell) marks.
When markets get more crowded and traditional trademarks lose their uniqueness, unconventional trademarks give companies new ways to differentiate themselves. However, because these markers may not be easily depicted visually, they can face additional challenges in getting legal protection and registration.
Legal Framework
Under Section 2(1)(zb) of the Trade Marks Act, 1999, a trademark must be capable of:
- Graphical representation; and
- Distinguishing the goods or services of one person from those of others.
These dual requirements have historically posed significant barriers to the registration of the Olfactory mark. Unlike the word or device marks, scents are inherently non-visual and difficult to represent with precision, clarity, and objectivity standards long recognized in the trademark jurisprudence.
Going through Sections 2(1)(zb) and 2(1)(m)[1] of the Trademarks Act, 1999 discloses that the Act has enlarged the definition of trademark to incorporate forms, packaging, and combination of colours. Any mark that can be shown graphically and that may identify the items or services of a single individual from those of others is considered a trademark, according to Section 3[2] of the Draft Manual. However, it has been seen that during registration, additional attention would need to be paid to colours, forms, noises, and fragrances. Additionally, a trademark registration application must include a graphical representation of the trademark in line with Rule 25 (12)(b) of the Brand Rules, 2002, while Rules 28 and 30 dictate that the trademark be displayed on paper, in a permanent manner.[3]
The Sumitomo's Application
A Notable development in the Indian context is the application filed by Sumitomo Rubber Industries Ltd. (Application No. 5860303) seeking protection for a 'floral fragrance reminiscent of roses' applied to tyres in Class 12 on a “proposed to be used” basis.
The Controller General of Patents, Designs, and Trademarks (CGPDT), has recently accepted a smell mark under India's trademark regime, generating significant attention and commentary. This development, hailed as a “watershed” moment for non-traditional trademarks, presents an important opportunity to reassess whether or not the statutory framework in India is equipped to accommodate an olfactory mark.[4]
Graphical Representation: Technical Interventions
To address the statutory requirement of graphical representation, the applicant reported relied on scientific modeling techniques, including a multi-dimensional olfactory mapping system. The approach conceptualized scent as a vector within a structured sensory framework, wherein distinct olfactory attributes such as floral, fruity, woody, minty, pungent, nutty, & sweety. The method aimed to provide an objective and reproducible representation of scent profiles, define the scope and boundaries of protection, and assist the registry in examining distinctiveness with great precision.
Distinctiveness
For an olfactory mark to be registrable, it must function as a source identifier rather than serving a purely functional or descriptive purpose. In the present context, tyres possess a characteristic rubber odour. The distinctiveness of the 'Sumitomo' was the “sudden and unexpected perception of roses,” which is an immediate and unmistakable identification with its tires. The distinctiveness was found on the basis of rose scent and no natural connection to tyres.
Implications for Brand Strategy in India
The recognition of olfactory trademarks in India marks a significant shift towards multi-sensory brand protection, expanding the traditional boundaries of trademark law beyond visually perceptible marks. This is particularly relevant for industries such as fashion, hospitality, and luxury retail, where signature scents can serve as powerful tools for consumer engagement and brand differentiation.
From a commercial perspective, olfactory marks introduced an additional layer of brand identity that:
- Strengthens consumer recall through sensory association.
- Enables distinctive experiential branding.
- Enhance brand protection strategies, particularly in mitigating risks of imitation and counterfeiting.
It signals the readiness of the CGPDTM to engage with the non-traditional trademarks that rely on scientific and technical methods of representation.
Position in India
Reading Sections 2(1)(zb) and 2(1)(m)[5] of the Trademarks Act, 1999 reveals that the Act has expanded the definition of trademark to encompass forms, packaging, and color combinations. Any mark that can be represented graphically and that may identify the items or services of a single individual from those of others is considered a trademark, according to Section 3[6] of the Draft Manual. However, it has been noted that during registration, additional attention should be paid to colours, forms, sounds, and fragrances. Additionally, a trademark registration application must include a graphical representation of the trademark in line with Rule 25 (12)(b) of the Brand Rules, 2002, while Rules 28 and 30 dictate that the trademark be displayed on paper, permanently.[7]
Challenges
Graphical representation of olfactory marks: The largest obstacle is still the need for pictorial depiction. There is currently no clarity in Indian law regarding the graphic representation of non-visual marks, such as fragrances. Adopting a more accommodating strategy, such to the US, where chemical formulas or descriptions may be recognized as a depiction of the fragrance, is one potential remedy. Additionally, the usage of smell samples throughout the application procedure may be permitted by law.
Public awareness: It would need significant awareness campaigns to inform consumers and businesses about the advantages and difficulties of smell trademarks before olfactory marks can be incorporated into India's IP framework. In order to manage the intricacies of scent-based trademark registrations, the Indian IP office will also need to increase its capacity in terms of resources and knowledge.
While the registration of olfactory marks in India is a progressive step in the evolution of the Indian Trademark law, it also introduces significant legal and practical challenges. One of the primary difficulties lies in the precise representation of scents, as fragrances are inherently subjective and difficult to describe in a manner that satisfy the statutory requirement of clarity, precision, and objectivity. Unlike visual marks, the standardization and reproducibility of smell remain scientifically complex, which may create inconsistencies during examination and enforcement.
Numerous strategies have been established to deal with the employment of smell markers in the relevant region, as we can deduce from the previously mentioned viewpoints. The creation of the distinctive features and the originality test is still ongoing. The specifications that are outlined in connection with these fragrance marks originate from a relatively liberal approach as opposed to one that puts the preservation of the public interest first. Before a scent can be regarded as a distinctive brand of a product, consumers must be able to smell it to differentiate it from rival products. The scent will mostly influence the consumer's decision to purchase the goods.
Enforcement presents another practical concern. Detecting and proving infringement of a scent may require technical analysis, expert evidence, and specialized testing, potentially increasing the cost and complexity of litigation.
Consequently, while the recognition of olfactory trademarks represents an important advancement towards multi-sensory brand protection, the effective implementation of such rights will depend on the development of clear regulatory standards, scientific methodologies for representation, and consistent judicial interpretation.
1. The Trademarks Act (Act No. 47 of 1999) ↑
2. Draft Manual of Trade Marks- Practice and Procedure, India. ↑
3. The Trademark Rules (2002). ↑
5. The Trademarks Act (Act No. 47 of 1999.) ↑
6. Draft Manual of Trade Marks- Practice and Procedure, India. ↑
7. The Trademark Rules (2002). ↑
Authors are Advocates practicing at Allahabad High Court. Views are personal.