Can a Smell Be Trademarked? India’s First Olfactory Mark Explained

When we think of trademarks, we usually imagine logos, brand names, or catchy slogans. But what if a company wanted to protect something less obvious like a smell? That’s exactly what has happened in India for the first time. On 21 November 2025, the Controller General of Patents, Designs and Trade Marks accepted a Japanese company’s application for a floral fragrance, smell reminiscent of roses applied to tyres. This decision marks a historic moment: the acceptance of India’s first olfactory trademark application.

This article explores what olfactory trademarks are, why this decision is groundbreaking, the challenges involved, and what it means for the future of intellectual property law in India.

What Is an Olfactory Trademark?

An olfactory trademark is a type of non-traditional trademark that protects a scent associated with a product or brand. Just like a logo or a jingle helps consumers recognize a brand, a smell can also serve as a unique identifier.

For example:

• A company might trademark the smell of freshly cut grass for tennis balls.

• A perfume brand could protect a specific fragrance formula.

• In this case, Sumitomo Rubber Industries Ltd. has sought protection for a rose-like fragrance applied to tyres.

Globally, smell marks are rare because they are difficult to define and register. Unlike words or images, smells cannot be easily represented graphically, which is a requirement under most trademark laws.

The Legal Background in India

India’s Trade Marks Act, 1999 traditionally required trademarks to be capable of graphical representation. This meant that logos, words, and even shapes could be registered, but smells could not. Since a scent cannot be drawn or described in a universally precise way, smell marks were considered impossible to register.

The recent acceptance of Sumitomo’s application changes this understanding. The order dated November 21, 2025 directs that the application in Class 12 (vehicles and tyres) be advertised on a “proposed to be registered” basis. This is the first time India has formally recognized a smell mark, setting a precedent for future applications.

Why Is This Decision Important?

1. Expanding the Scope of IP Law

   • It shows that trademarks are not limited to visual or verbal cues.

   • Sensory branding, using smell, sound, or touch is gaining recognition.

2. Encouraging Innovation

   • Companies can now differentiate products in unique ways.

   • For example, a bakery could trademark the smell of its signature bread.

3. Global Alignment

   Countries like the U.S. and EU have already recognized smell marks in rare cases.

   India’s move brings its IP regime closer to international practices.

While this decision is groundbreaking, it also raises practical and legal challenges:

• Graphical Representation: How do you represent a smell in a trademark registry? Chemical formulas may not fully capture the sensory experience.

• Subjectivity: People perceive smells differently. What smells like roses to one person may not to another.

• Functionality Doctrine: If a smell is naturally associated with a product (e.g., the smell of rubber tyres), it may not qualify as a trademark.

• Enforcement: Proving infringement of a smell mark in court could be complex.

These challenges mean that smell marks will likely remain rare and carefully scrutinized.

Global Examples of Smell Marks

India is not alone in exploring olfactory trademarks. Some notable global cases include:

• United States: The smell of Play-Doh (a sweet, vanilla-like scent) has been trademarked.

• European Union: A Dutch company once registered the smell of freshly cut grass for tennis balls.

• Australia: A floral fragrance applied to industrial lubricants was accepted.

These examples show that while rare, smell marks are possible under certain conditions.

Implications for Businesses and Law

The acceptance of smell marks in India could have wide-ranging implications:

• Branding Opportunities: Companies may explore new sensory branding strategies. Imagine shoes with a signature scent or stationery with a unique fragrance.

• Legal Precedent: Courts and trademark offices will need to develop standards for evaluating and enforcing smell marks.

• Consumer Experience: Products may become more distinctive and memorable, enhancing customer loyalty.

• Academic Interest: Law students and researchers will find this case a fascinating study in the evolution of IP law.

This is a reminder that intellectual property law is not static—it evolves with technology, creativity, and commerce.

So, can a smell be trademarked? In India, the answer is now yes, at least in principle. The acceptance of Sumitomo Rubber Industries’ application for a rose fragrance applied to tyres marks a turning point in Indian trademark law. While challenges remain in defining, registering, and enforcing smell marks, this decision opens the door to new possibilities in branding and intellectual property.

As businesses look for innovative ways to stand out, and as law adapts to new realities, olfactory trademarks may become part of India’s IP landscape. For now, this case is a milestone, a reminder that even something as intangible as a fragrance can carry legal weight in the world of commerce.