What does India’s first smell trademark mean for sensory branding?

This article is written by Ritika Tejpal, Associate at LawSikho.

Introduction

Ever thought that a tyre that smells like roses still feels like a tyre under law? Or does that scent have to be turned into something that the trademark registry can actually see? Well! Indian law insists u/s 2(1)(zb)  of the Trademark Act that every trademark must be capable of graphical representation in a clear and legible form. Apparently, smells are inherently tricky to treat as trademarks. Unlike a logo or a word, a scent couldn’t be easily represented. Recently, India’s first non-conventional trademark, i.e., a smell trademark, was accepted for advertisement by the trademark registry, which is subject to opposition that we may see in the coming days. To meet the aforementioned standards, the smell of rose scent was translated into a ‘seven-dimensional olfactory map’ with the assistance of IIIT (Indian Institute of Information Technology), Allahabad.

Do you know consumer memory often latches onto multisensory cues that feel ‘lived’ rather than merely ‘seen’? Since the non-traditional trademarks aim to capture this sense so this could bring a significant change from the logo-driven branding to a vibrant side. We can consider the example of the exhaust sound of Harley-Davidson has been globally recognized as a quasi-signature. But legally, Harley’s sound is not a registered mark. However, they filed for its registration in the U.S., which was later abandoned due to opposition by several competitors alleging it to be generic in nature.

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So, these scented tyres sit in the same conceptual space. Undoubtedly, Modern branding is shifting towards multisensory ecosystems wherein businesses can legally commercialise those ‘lived’ sensory signatures.

Understanding the Olfactory Trademarks

Under section 2(1)(m) of the Indian Trademarks Act, a ‘mark’ includes several items such as a device, a brand, or a ticket, etc.  But to qualify as a ‘trade mark’ it must be capable of visual representation and have distinctiveness as laid u/s 2(1)(zb) read with Section 9(1)(a) of the Act. A similar rule is also laid under Article 15 of TRIPS, and the Paris Convention also emphasizes that any trademark should not be in conflict with the ‘local laws’. The trademarks primarily aim to make customers recall the value of a brand. McDonald’s iconic ‘Golden Arches’ instantly remind the brand’s identity and may even signal quality in the minds of customers.

The ‘olfactory trademarks’ are covered under non-conventional trademarks that include shapes, colours, smell, and sound marks. These trademarks relate to how a brand is experienced rather than just how it looks. Because they capture the potential of sensory of experiential identity, and what used to be just a natural customer association could be legally recognized as a part of the brand. In India, the sound marks could be filed in ‘MP3 format’ with a notated graphical representation per the Trade Marks Rules, 2017, and brands such as Nokia have already registered the ringtone as sound marks. India’s registration of its first smell trademark signals that Indian Law is now willing to move towards non-conventional trademarks without abandoning the requirements.

Think about the last time when a scent instantly lifted your mood or transported you back to a memory. Can you recall smell more clearly than the visuals associated with it? Studies confirm that memories related to smell carry more weight than visuals. The sensory branding could be more than nostalgic as it may allow a product can stand out in customers’ minds before they even see its name. A good example could be taken from 2018 when ‘PLAY-DOH’ registered its scent in the United States.

What’s the case in the news

A Japanese company known as Sumitomo Rubber Industries Ltd. applied in 2023 for this non-conventional trademark. It was undoubtedly a unique take as most people associate the harsh smell of rubber when they reminisce about its smell, so this floral fragrance would create a contrast sensory experience that can anchor brand recall at the point of sale and servicing.  They applied under Class 12 for ‘floral fragrance or smell reminiscent of roses as applied to tyres’. The registry considered several factors to determine its suitability as an olfactory mark. 

The applicant relied on the history of using the rose-scented tyres since the 1990s. It was in line with their long-term brand strategy rather than a short-term marketing tactic. Sumitomo also cited several formerly registered marks, like the EU’s ‘freshly cut grass’ mark for tennis balls. Along with how the UK has protected its scent in 1996, and the protection given to non-functional scents in the United States.

Complexities in application

What made Sumitomo’s application tricky was the conditions laid under Indian Law, i.e., Section 2(1)(zb) and Section 9(1)(a). So there were the following two roadblocks that existed:

  1. To lay down the scent involved in a clear, objective, and durable form; and
  2. To convince the Registry that it is capable of graphical representation.

It could be said that these two requirements have largely closed doors to olfactory claims, as traditional tools weren’t simply built for a medium that consumers experience rather than see. 

Breakthrough point

The olfactory marks are non-visual in nature, but the applicant converted the scent into a visual ‘scent fingerprint’ with the support of IIIT Allahabad. Each of those was quantified using VOC(Volatile Organic Compound) data. The team used an established model of olfaction and placed it amongst major fragrance families such as floral, woody, and fruity.

Countries like the United States have no strict requirement for a sample image, and by way of the Trademark Manual of Examining Procedure, the applicants are required to file a detailed description that could be accompanied by samples of scent.

Lens used for examination by the Trade Marks Office

For the Controller General of Patents, Designs and Trademarks (CGPDTM), the primary question wasn’t whether the tyres smelled like roses or were pleasant. But it was whether the smell could legally function as a trademark. So the following standards are considered to examine suitability for a non-conventional mark:

  1. Is the scent of a unique or distinct category, and does it instantly point towards the brand rather than the product itself?
  2. Does the smell serve a technical purpose? If yes, then it can’t be monopolised. The current case involves ‘a rose scent’ that adds no performance benefit to tyres and is merely associative. 
  3. Could the scent be accurately described, measured, and represented for others to recognize or challenge it?

Besides that, the submissions of amicus curiae Shri Pravin Anand provided clarity on scientific applicability and these questions. Thus, applicants covered all angles where the olfactory application failed to meet standards, thereby setting a practical template for future applicants.

Intellectual Property (IP) law and policy angle 

With India being the fourth-largest economy, this first smell trademark is more than the protection given to a quirky mark. It can be said that this registration marks a turning point where sensory branding could be protected in one of the world’s largest consumer markets. It enforces the law to take a position on how far IP law should go in locking in the sensory features as competitive assets.

TRIPS compliance

India’s acceptance of the 7D olfactory graph as a visual representation places it amongst one of the progressive jurisdictions on sensory trademarks. This also reflects compliance with Article 15 of TRIPS that permits states to require visual perceptibility. Although it is not mandatory and is one of the ethos laid as a non-discrimination principle encourages member states to avoid denials for protection to non-conventional marks. So Sumitomo’s case could be seen as an attempt to align the domestic law with global principles and signals as a doctrinal clarification concerning olfactory marks. It sets a jurisprudential foundation for upcoming sensory claims that are capable of clear identification and visual representation.  

Commercial goals

Sumitomo has been allowed for advertisement in Class 12 on a ‘proposed to be used basis’ to their mark that aligns with Section 20 of the Trade Marks Act. This indicates that Indian law is prepared to safeguard the non-traditional marks that could be suitably represented.   

The trademarks can last longer than patents. In India, a patent runs for 20 years from the filing date as provided under Section 53(1) of the Patents Act and then falls back to the public domain, while a trademark is registered for 10 years as laid u/s 25 of the Trade Marks Act and can be renewed every 10 years. There’s no maximum cap for trademarks, and they can be renewed after expiration of the aforementioned period, provided they are in use, and the renewal fee is paid. So a validated smell mark can be renewed indefinitely by allowing the brand to retain exclusivity over a signature scent long after the technical innovation enters the public domain. Thus, companies now have a reason to embed proprietary sensory cues into products that are difficult to imitate without risking infringement.

So a validated smell mark can be renewed indefinitely by allowing the brand to retain exclusivity over a signature scent long after the technical innovation enters the public domain. Thus, companies now have a reason to embed proprietary sensory cues into products that are difficult to imitate without risking infringement.

Distinctiveness without functionality

The applicants were able to justify that the ‘rose-fragrance’ does not contribute to the tyre safety and is of extrinsic value. This artificiality enabled the scent to operate as a distinctive sign rather than a technical feature. The brands may experiment with sensory overlays in the future and consider those elements that neither enhance nor impair the performance, to enter the trademark register. Also, the test laid under Indian Law for eligibility operates as a gatekeeper that prevents trademarks from extending into performance-linked features that primarily belong to the patent sector.

Sensory Monopolies

If a smell could function as a trademark, then it automatically inherits a potential perpetuity that’s one of the powerful safeguards given under trademark law. The option for renewals creates a scenario where a brand may lock a sensory asset for the long term, even if any technical innovation has entered the public domain. So courts and regulators may have to maintain a balance that tends to protect legitimate brand identity without creating sensory monopolies that crowd out innovation. 

A few takeaways for brands

Distinctive identity

When a scent is embedded in a product like tyres and protected as a trademark, it creates an identity layer that competitors cannot replicate by merely changing colors, logos, or packaging. So it is beneficial in the case of automobiles, where the visual and technical differentiation is increasingly marginal. One of the research studies published in the International Journal of Consumer Studies proves that consumers could retain more of what they smell as compared to what they see.

Neurological Advantage

The structure of our brain actually gives a unique branding power to scents. As the scents evoke emotionally rich and older memories, as proven by a study conducted by Northwestern University. That means the scent of tyres could trigger deeper emotions and may translate into long-term recall that’s harder to establish with visuals alone.

Using Experiential Touchpoints

The sensory branding can be paired with AR (Augmented reality) experiences, and it need not stop at physical products. For example, Mercedes-Benz offers an ‘Air Balance’ fragrance system that diffuses curated scents via the ventilation system and turns the interior into a sensorial space.

Core Brand Architecture

The recent developments suggest that sensory branding is likely to move from isolated experiments into the mainstream of brand strategy. So protections sought by early movers can convert sensory elements into long-term competitive assets rather than temporary campaigns. Those who delay, these late entrants, may discover that the ‘sensory slots’ in their category are already occupied. Also, a protected scent ain’t only a branding tool but also a licensable asset. The companies have an advantage to monetize distinctive scents by licensing them to collaborators or co-branding partners.

These rose-scented tyres are not just a novelty. But they mark the start of a more immersive and multi-sensory era for branding, along with consumer experience.  

To end with

It could be said that India’s acceptance of the first sensory mark signals more than merely a novel IP milestone. It reflects that the market is reconsidering how the brands compete, and consumers resonate with items. This development pushes the need to evolve the traditional trademark doctrines and provides that brands no longer need to confine themselves to logos and taglines. The real disruption won’t lie merely in who applies for the next olfactory mark but in who builds a defensible ecosystem around it. Thus, the future of sensory applications would depend upon how consistently examiners apply Sumitomo’s template, especially for olfactory marks to determine distinctiveness and the requirement of visual representation.

What do you think if sight and sound helped build great brands of the 20th century, will scent and sensation shape icons of the 21st?

FAQs

  1. What product has received India’s first smell trademark?

It has been granted to a Japanese company known as Sumitomo Rubber Industries for the ‘rose-scented’ fragrance applied to its tyres.

  1. Why is India’s first olfactory mark a big deal for automotive brands?

Because it introduces a new dimension of competition. Earlier automotives were primarily differentiated by design, performance, and technology, but now smell has become a legally protectable asset too.

  1. Give examples of any famous brands that are using smell-based branding.

There are brands like Mercedes-Benz for a luxury cabin experience, and Starbucks for brand ambience are a few amongst those that are using sensory branding.

  1. For how long will Sumitomo hold the trademark in India? 

The period is actually for 10 years, but it can be renewed after the expiration of such years, provided they pay the application fee and the trademark remains in use.

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