Summary
This post examines the Trade Marks Registry’s order dated 21 November 2025 accepting an olfactory trademark in India for rose-scented tyres (TM Application No. 5860303). It outlines the objections on graphical representation and distinctiveness, the IIIT Allahabad seven-dimensional scent-vector model adopted as a graphical representation, and the Registrar’s findings on arbitrariness and source identification. The note situates the order within the framework of the Trade Marks Act, 1999 and its treatment of non-traditional marks.
Background
On 21 November 2025, the Trade Marks Registry, India, issued an order in Trade Mark Application No. 5860303 filed by Sumitomo Rubber Industries Ltd., Japan. The application, filed on 23 March 2023, seeks registration in Class 12 for “FLORAL FRAGRANCE / SMELL REMINISCENT OF ROSES AS APPLIED TO TYRES” on a proposed to be used basis. The application is treated as a smell or olfactory mark application.
Olfactory trademarks are uncommon and raise specific issues under trade mark law, particularly in relation to graphical representation and distinctiveness, since a scent is not directly visible and is experienced subjectively.
Legal Objections & Challenges
The Trade Marks Registry examined the application and raised objections under sections 9(1)(a) and 2(1)(zb) of the Trade Marks Act, 1999, on the following grounds:
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- Graphical representation (section 2(1)(zb)): The Registry objected that the mark, being a smell, was not supported by a graphical representation as required by the definition of a trade mark.
- Distinctiveness (section 9(1)(a)): The Registry objected that the mark lacked distinctiveness, as required under section 9(1)(a).An examination report dated 4 August 2023 was issued. The Applicant filed a written response dated 27 September 2023 and attended multiple hearings, with further written submissions. To assist the Registry, Shri Pravin Anand was appointed as amicus curiae. He also placed on record a scientific report containing a proposed graphical representation of the smell.
Applicant’s Submissions
The Applicant submitted, among other points, that:
- The mark consists of a floral scent reminiscent of roses infused into tyres manufactured by the Applicant, used by it since 1995 as part of its business strategy.
- The same description has been registered as a smell mark in the United Kingdom under Registration No. UK00002001416 for “a floral fragrance/smell reminiscent of roses as applied to tyres,” and this demonstrates that the mark is considered capable of registration as a trade mark.
- There is no correlation between the smell of roses and tyres for vehicles, so the mark is arbitrary in relation to the goods and capable of distinguishing the Applicant’s goods from those of others.
- The smell of roses is widely understood and identifiable by the public, and a statement describing the smell is sufficient to indicate what is claimed. By way of illustration, the Applicant referred to well understood smells such as freshly cut grass and the smell of soil after rain, and cited decisions of European courts on smell marks.
- Olfactory marks have been accepted in several jurisdictions including Australia, Costa Rica, the European Union, the United Kingdom and the United States, and examples of existing registrations were submitted.
On distinctiveness and confusion, the Applicant argued that a person of average intelligence and imperfect recollection would understand the expression “floral fragrance / smell reminiscent of roses as applied to tyres” without confusion, and that the scent of roses is commonly recognised.
Graphical Representation
To address the objection on graphical representation, the Applicant adopted the representation submitted by the amicus curiae, based on work carried out at the Indian Institute of Information Technology, Allahabad. Three researchers at IIIT Allahabad developed a graphical model of a rose like smell as a vector in a seven dimensional space. Each dimension corresponds to one of seven fundamental smell categories described as floral, fruity, woody, nutty, pungent, sweet and minty (as shown in figure 01.).
The report explains that the rose like scent is modelled by assigning intensity values along each of these seven dimensions and depicting them in a radar type graph, which is intended to function as a visual representation of the claimed odour. Annexure A to the order reproduces this graph along with an explanation of the underlying methodology.
The Applicant requested that the verbal description “Floral Fragrance / Smell Reminiscent of Roses as applied to Tyres” be read together with this graphical representation for the purposes of section 2(1)(zb).
Submissions of the amicus curiae
The amicus curiae submitted that:
- Two conditions are central for scent marks, namely graphical representation and distinctiveness.
- Several jurisdictions have recognised scent marks subject to these conditions. Examples include Australia and the United States, where examination practice requires that the scent should not be functional in relation to the goods and that it should act as a source identifier.
- The Indian statute does not expressly exclude scent marks, and the inclusive definition of “mark” in section 2(1)(m) can accommodate such marks if they meet the statutory requirements.
- In this case, the rose fragrance applied to tyres is arbitrary and non functional, and therefore capable of distinguishing the Applicant’s goods.
The graphical report from IIIT Allahabad was also placed on record in support of the requirement of graphical representation.
Analysis and Findings
Findings on graphical representation
The Registrar considered the statutory requirement that a trade mark be “capable of being represented graphically” under section 2(1)(zb). Noting that a conventional word or device representation is not possible for a smell, the Registrar examined whether the IIIT Allahabad vector model adequately identified the claimed scent.
The order records that the graphical representation sets out the constituent smell dimensions and their respective strengths, and that this enables the authorities and the public to determine the subject matter of protection. The Registrar therefore held that the representation, together with the accompanying description, complies with the requirement of graphical representation under section 2(1)(zb).
Findings on distinctiveness
On distinctiveness, the Registrar observed that this criterion may be easier to evaluate in case of conventional visual marks and more demanding for non conventional marks. In the present case, the Registrar reasoned that:
- The scent of roses has no direct relationship with the nature, characteristics or use of tyres and is therefore arbitrary in relation to the goods.
- When a vehicle fitted with tyres containing the claimed smell passes by, a consumer perceiving the rose like scent in place of the usual rubber smell would be able to associate the experience with the Applicant as the source of origin.
On this basis, the Registrar concluded that the mark is distinctive for the purposes of the Trade Marks Act, 1999.
Decision
The Registrar held that the trade mark satisfies the criteria for registration under the Trade Marks Act, 1999, including graphical representation and distinctiveness as required by section 2(1)(zb). The registrar accepted the Trade Mark Application No. 5860303 for “FLORAL FRAGRANCE / SMELL REMINISCENT OF ROSES AS APPLIED TO TYRES” in Class 12. The Registry has ordered to advertise the application in the Trade Marks Journal as an “olfactory mark” on a proposed to be used basis, along with the graphical representation and description set out in Annexure A to the order.
Authored by Ms. Ananya Nadajoshi.