A mark is more than a mere symbol—it is a memory distilled into form.

It refers to anything that enables consumers to identify the goods or services of one person and distinguish them from those of others. The fundamental purpose of a mark is to create an immediate association or recollection in the minds of consumers, thereby linking the mark with a particular commercial source. Accordingly, the term “mark” encompasses a wide range of indicia such as words, logos, devices, labels, tickets, names, signatures, and other such representations.

For a mark to qualify as a trademark, it must satisfy two essential conditions under Indian trademark law:

1. Graphical Representation – The mark must be capable of being depicted visually in a clear, precise, and objective manner.
2. Distinguishing Goods or Services – The mark must be inherently distinctive or capable of acquiring distinctiveness, such that it can distinguish the goods or services of one person from those of another.

Trademarks that fulfil these criteria are traditionally referred to as conventional trademarks, which primarily include visually perceptible signs such as words, logos, devices, labels etc.

A second category of marks has emerged with the evolution of branding—unconventional trademarks, which include sound, smell, motion, taste, colour, shape, and other non-traditional sensory signs. The biggest hurdle for the unconventional marks is to technically satisfy the condition of graphical representation.

The first major development in this regard occurred with ‘sound marks’. In 2008, the well-known Yahoo! yodel became the first sound mark to be registered in India, setting a precedent for non-traditional brand identifiers. Further clarity arrived with the Trade Marks Rules, 2017, which revamped several procedural aspects of trademark law and formally introduced filing requirements for sound marks. Under Rule 26(5) of the 2017 Rules, an application for a sound mark must be submitted in MP3 format not exceeding 30 seconds, accompanied by a graphical representation of the musical notations, thereby satisfying the statutory requirement of graphical representation.

A significant development unfolded recently in Indian trademark jurisprudence. The Indian Trade Marks Registry officially accepted for advertisement in the Trade Marks Journal the country’s first smell mark, described as “FLORAL FRAGRANCE / SMELL REMINISCENT OF ROSES AS APPLIED TO TYRES” in Class 12. The application was filed by Sumitomo Rubber Industries Ltd., Japan, for the distinctive scent of roses infused into tyres.

This milestone is especially noteworthy because the same company had earlier achieved groundbreaking recognition in the United Kingdom in 1994, becoming one of the earliest proprietors of an olfactory trademark globally. By securing acceptance for advertisement in India, the company has effectively recreated history, extending the frontier of unconventional trademark protection into the Indian regime.

Given the novel nature of the application and the complex legal and technical challenges associated with olfactory marks—particularly issues relating to graphical representation and distinctiveness—the Trade Marks Registry appointed an Amicus Curiae to assist in evaluating the registrability of the scent mark. This move underscores the significance of the case and its implications for future non-traditional trademark filings in India.

The long-standing puzzle of achieving graphical representation for an olfactory mark—arguably the most difficult requirement for unconventional trademarks—was finally addressed through a scientific breakthrough. A panel of three eminent professors from the Indian Institute of Information Technology (IIIT), Allahabad succeeded in formulating a graphical representation of the rose fragrance, thereby resolving what had been both a technical and legal challenge. Their scientific depiction clearly identified the constituent elements of the scent and illustrated their respective proportions or weightage in the overall aromatic composition.

The Registrar was satisfied that this representation met the statutory threshold and therefore complied with the requirement of being “capable of graphical representation” under Section 2(1)(zb) of the Trade Marks Act, 1999.

Addressing the second requirement—distinctiveness—was comparatively straightforward. The Registrar observed that a consumer encountering a vehicle fitted with tyres emitting the unique rose-like fragrance would be able to immediately associate the scent with the Applicant’s goods, thereby establishing a clear link between the fragrance and its commercial source. On this basis, the Registrar concluded that the proposed smell mark possessed the requisite distinctive character, satisfying the second limb of trademark registrability.

With the registration of the smell mark, India etches a historic milestone in its intellectual property landscape, signalling the nation’s readiness to embrace and protect innovative forms of brand identity beyond traditional visual marks.

Adv. Vineed Abraham

Adv. Bindhu Antony