We bring to you a recent significant development in Indian trademark law, which may be helpful to enhance protection for your brands in India. The Indian Trade Marks Registry has, for the first time, accepted a smell trademark for a rose-scented tyre filed by Sumitomo Rubber Industries Ltd., which is now published for advertisement.

As you may be aware, India has no explicit mechanism to file or examine smell marks, primarily because such marks could not meet the statutory requirement of “graphical representation”, a prerequisite for trademark registration. As a result, scent marks were generally not considered registrable.

However, Sumitomo overcame these hurdles by submitting a 7-dimensional vector as a scientific/graphical representation of their rose scent. The Indian Trademark Office accepted this representation and found the rose scent to be arbitrary, non-functional and distinctive for tyres, paving the way for brands to obtain protection for their signature scents in India.

If your brands use a distinctive fragrance (for products or packaging), now may be a good time to consider protecting it through a smell-mark. If the brands satisfy these requirements, apply for the extra protection now!

  • Clear description of the scent – A precise description of the scent.
  • Distinctive feature – The scent should be unique and capable of identifying the brand among other similar products in the market.
  • Non-descriptive & Non-Functional – The scent should not naturally arise from the goods or be for any functional purpose.
  • Graphically representable – Currently, vector based representation comprising the extent and nature of the various components involved in the scent is accepted. Any other means of graphical representation aptly representing the scent would also be sufficient.
  • Use of the mark – Although use of a smell mark cannot be proved merely through advertising material or invoices alone, it is possible to establish use through other additional materials such as customer reviews mentioning the scent, documents involving manufacturing process mentioning the scent, etc.

Smell marks can significantly enhance brand recall value and customer experience, acting as a strong identifier. Further, once accepted, such marks are difficult to oppose or cancel, making them a valuable long-term IP asset.

If you have any such brands of distinctive scent, we would be happy to conduct a quick pre-assessment to evaluate whether your fragrance qualifies and how best to present it to the Registry. Feel free to reach out to us!

Written by Keerthana K