You hear “ting ting di ting” from a neighbour’s television and know exactly which biscuit is being advertised. You catch a smell drifting from a kitchen and can name the restaurant. Brands are identified by more than logos — and trademark law has had to work out how to register something you cannot draw.
Why protect sounds and smells
Think of Microsoft Windows’ opening theme, Nokia’s tune, Intel’s chime, McDonald’s “I’m lovin’ it”, Airtel’s jingle — or the smell of a particular biryani, a familiar deodorant, bitter beer. These belong to well-established companies and are identifiable by almost everyone.
Businesses do protect them, and for the ordinary reason: to guard against a local coffee shop using McDonald’s jingle, or selling potato pakodas that smell like a McAloo Tikki burger. The purpose is to ensure their products remain unique.
Consider a Bajaj Pulsar whose engine sounded like a Harley-Davidson, or a whisky that smelled like bitter beer. Anyone familiar with those sounds or smells would be deceived. A sound or smell that identifies a famous product needs protection to defend the product’s distinctiveness.
What counts as a mark
In India, trademarks are governed by the Trade Marks Act, 1999 and its Rules. A mark can be the signature, identity, symbol, depiction or name that uniquely identifies a company, business or even a roadside shop — and comes in many kinds: word marks, logos, 3D marks, sound marks, smell marks.
The Act requires that a mark be graphically represented and be distinguishable from other marks. Distinctiveness must be proved for something to be a mark at all — and a peculiar sound or smell does give a mark distinctiveness. That is the hook on which non-conventional marks hang.
Firsts, and famous examples
The first smell mark was registered in the United Kingdom by Sumitomo Rubber for “a floral fragrance or smell reminiscent of roses as applied to vehicle tyres”. Others include the strong smell of bitter beer, the smell, aroma or essence of cinnamon for furniture and fittings, and the smell of fresh cut grass for tennis balls.
For sound, the first registration in the US was the NBC chime, and in India the famous Yahoo yodel. Other registered sound marks include Nokia’s tune, Intel’s five-tone sound, the Looney Tunes theme, the Pillsbury Doughboy’s giggle, American Airlines’ “ding”, and the 20th Century Fox drum roll.
India’s register has grown since — ICICI Bank, Britannia’s four-note jingle and others have followed the Yahoo yodel.
How registration works in India
The perennial obstacle is graphical representation.
For sound marks, the position has improved substantially. When this was written, an applicant had to reduce the sound to musical notation, ideally identifying the instrument used and the notes, so the description itself demonstrated the sound’s uniqueness.
The Trade Marks Rules, 2017 changed this. Rule 26(5) now provides that a sound mark is filed by submitting the sound in MP3 format, of not more than thirty seconds, accompanied by a graphical representation of its notations. That is very close to the amendment this article hoped for — you now submit the sound itself, with the notation supporting it rather than standing in for it.
For smell marks, nothing has changed. Smell is not directly referred to in the definitions of “mark” or “trademark” under the Act, though the definitions do not exclude it. To seek registration, the smell must be described in writing — for instance, “scent of strawberries from clothes after every wash” for a scented washing powder.
That requirement is what defeats smell marks in practice, in India and nearly everywhere. A verbal description of a scent is neither precise nor objective enough to define the scope of a monopoly, and there is no equivalent of an MP3 for smell. No smell mark has been registered in India.
What an applicant must prove
The mantra for brand owners is: if distinctiveness needs to be proved, prove it.
The foremost challenge is establishing that the sound or scent is unique, distinct and closely associated with the brand — that experiencing it makes a person think of that brand only. The second is registration mechanics: the owner must seek protection for the sound or smell in relation to particular goods or services, in a discrete class, rather than attempting to register a sound or smell at large.
The future
India’s trademark system has drawn considerably on the European Union and US regimes. In an era where straightforward word marks, labels and logos are sometimes refused, sounds and smells have been registered.
The wish expressed here — that technology should let sound marks be registered by recording and storing them as audio files, without penning a description — has largely been granted for sound. For smell, the equivalent would be a device that records a scent permanently; until something like that exists and is accepted as a form of representation, olfactory marks will remain theoretically available and practically out of reach.
The rise of non-conventional marks is a genuine development in IP — letting people protect the uniqueness of goods and services beyond what can be drawn on a page.
The takeaways
- Sound marks are registrable in India — MP3 up to 30 seconds plus notation, under the 2017 Rules.
- Smell marks remain unregistrable in practice — a written description cannot define the monopoly.
- Distinctiveness must be proved — the sound or smell must point to one brand only.
- File for specific goods or services in a discrete class, not at large.
Frequently asked questions
Can a sound be registered as a trademark in India? Yes — under Rule 26(5) of the Trade Marks Rules, 2017, by submitting an MP3 file of not more than thirty seconds with a graphical representation of the notations.
Can a smell be registered as a trademark in India? In principle the definitions do not exclude it, but the graphical representation requirement means a smell must be described in writing — and no smell mark has been registered in India.
What was India’s first registered sound mark? The Yahoo yodel.
What must be proved to register a sound mark? That the sound is unique and distinctive, and so closely associated with the brand that hearing it makes consumers think of that brand alone.
Useful official resources
- The Trade Marks Act, 1999
- Trade Marks Registry — IP India