Trademarks have traditionally been associated with visual identifiers such as names, logos, labels, and symbols. As brand-building becomes increasingly experiential, however, businesses are also investing in smell trademark (sensory cues) to strengthen consumer recall and differentiation.

In this context, India has taken a notable step by accepting for advertisement, its first smell (olfactory) trademark application. The application, filed by Sumitomo Rubber Industries (Dunlop), relates to a rose-like fragrance applied to tyres. While the mark is not yet fully registered, its acceptance signals an important development in India’s approach to non-conventional trademarks and raises wider questions about how scent-based brand assets may be protected in the future.

What Are Smell Trademarks?

A smell trademark is a non-conventional mark in which a specific scent functions as a source identifier for goods or services. Like conventional trademarks, the purpose is to indicate commercial origin and reduce the likelihood of consumer confusion.

Unlike visual marks, olfactory marks operate through sensory association where a consumer links a particular scent with a particular brand. While trademark law has gradually expanded to recognise non-traditional marks such as sound and colour, smell marks remain rare due to the inherent challenges in defining, representing, and enforcing them.

Legal Requirements and the Challenge of Representing Smells

Under the Trade Marks Act, 1999, a trademark must be capable of graphical representation, and distinctive.

Both requirements create significant barriers for smell marks. Graphical representation is intended to ensure legal certainty by allowing the public and competitors to understand what is being protected. However, smells are difficult to describe with precision. A term such as “rose fragrance” can be interpreted broadly and may be challenged as subjective or insufficiently specific.

In this application, the applicant relied on scientific modelling to represent the scent in a structured and measurable format. The fragrance was mapped using a multi-dimensional olfactory profile, broken down into identifiable scent characteristics such as floral intensity, sweetness, and other measurable attributes. This approach seeks to provide a more objective representation of an otherwise intangible sensory experience.

Distinctiveness is the second major hurdle. A smell can function as a trademark only when it is not functional or inherent to the product. Functional scents such as mint in toothpaste or lemon in cleaning products cannot be monopolised. In contrast, a rose-like fragrance has no natural functional connection to tyres, which strengthens the argument that it operates as a brand identifier rather than a product feature.

It is important to note that the mark has only been accepted for advertisement and has not yet proceeded to registration. This reflects the caution typically applied to novel categories of trademarks, particularly where the scope of protection may be contested.

Why Smell Trademarks Matter

The increased interest in smell trademarks reflects broader shifts in modern branding. Visual brand assets are increasingly saturated, and companies are exploring sensory branding to create stronger differentiation. Smell is particularly relevant in this context, given its close association with memory and emotional recall.

Recognising olfactory marks also signals that trademark law is adapting to evolving commercial realities and the increasing value placed on non-visual brand identifiers.

Benefits and Challenges

Smell trademarks may offer brand owners an additional layer of protection and a new avenue for differentiation. Consumers may also benefit where a distinctive scent helps identify product origin and reinforces consistency and quality.

However, significant challenges remain. Smell marks are complex to represent, difficult to examine consistently, and may be harder to enforce in practice. There is also a risk of overreach if commonly used or functional scents are granted exclusive rights. For this reason, smell trademark applications require careful scrutiny, strict evidentiary standards, and clear boundaries to preserve competitive fairness.

India’s acceptance of its first smell trademark application represents a cautious but meaningful step in the evolution of brand protection. While registration is still pending, the development indicates growing openness to non-visual marks, provided they meet the legal requirements of distinctiveness and representation.

At BLOCK X, we closely track such developments as they shape the future of intellectual property strategy and brand enforcement. As branding continues to move beyond the visual, legal frameworks will need to balance innovation with certainty to ensure that new forms of trademarks protect legitimate commercial interests without restricting fair competition.

Contact us to know more about our services on trademark.

Credits: Midhuna Nair (Legal Representative from BLOCK X)