On November 21, 2025, the Indian Trade Marks Registry effectively broke a decades-long global deadlock between science and law. In a reasoned order that will likely be cited in intellectual property textbooks worldwide, the Controller General accepted a smell mark for the first time in Indian history: a floral fragrance or a smell reminiscent of roses applied to tyres. While the headlines are celebrating the novelty of a rose-scented tyre, the true legal innovation lies hidden in the annexures of the order. The Registry did not merely accept the smell because it was unique but because the applicant found a way to digitize the subjective human experience of scent into objective, verifiable data. This victory belongs as much to the researchers at the Indian Institute of Information Technology, Allahabad, as it does to the legal team at Sumitomo Rubber Industries. This development marks a significant departure from the hesitation seen in jurisdictions like the European Union and the United Kingdom regarding olfactory marks. By validating a 7-dimensional vector model for graphical representation, India has signaled that its intellectual property framework is ready to embrace the sensory branding of the future.
The Sieckmann Trap and the Global Deadlock
To understand the magnitude of this order, one must first understand why registering a smell has been historically impossible. The primary hurdle in trademark law is not the definition of a mark but its graphical representation. A trademark must be capable of being represented on paper in a way that allows the public and competitors to know exactly what is protected. For visual marks like logos, this is simple; for sound marks, we use musical notations or spectrograms. However, smells presented a unique challenge. In the landmark Sieckmann case, the European Court of Justice established a strict test, ruling that for a non-conventional mark to be registered, its representation must be clear, precise, self-contained, intelligible, durable, and objective. This created a trap that destroyed nearly every smell mark application that followed. A chemical formula was deemed insufficient because it represents the substance, not the smell (few people know what a complex organic compound actually smells like without experiencing it), and a written description like the smell of balsam was rejected for being too subjective, as different people perceive scents differently based on culture, memory, or biology. As noted by the Amicus Curiae, Mr. Pravin Anand, in his analysis of global precedents, smells fall into two categories: those we can precisely name (like petrichor or oranges) and those that defy precise description (like “sweet floral”). The law has struggled to protect the latter because verbal descriptions lack the necessary objectivity. Consequently, the registration of olfactory marks ground to a halt globally, as the law demanded objectivity for a sense that is inherently subjective[HT1] .
The Indian Solution: The Rose Radar
The Sumitomo application initially faced the same objections, with the Registry citing Section 2(1)(zb) of the Trade Marks Act, 1999, arguing that the mark lacked distinctiveness and a valid graphical representation. This is where the intervention of the amicus curiae- Mr. Pravin Anand, and the scientific team from IIIT Allahabad shifted the paradigm. Instead of relying on adjectives or chemistry, they turned to data visualization. The order details a graphical representation of a rose-like smell prepared by Prof. Pritish Varadwaj, Prof. Neetesh Purohit, and Dr. Suneet Yadav, who mapped the smell not as a picture, but as a complex vector in a 7-dimensional space. The graph included in the order utilizes a radar chart that plots the scent across seven fundamental olfactory dimensions: Floral, Fruity, Woody, Nutty, Pungent, Sweet, and Minty.
By assigning a specific quantitative value to each of these axes, the researchers converted the smell of a rose into a unique geometric shape. The Controller General accepted this radar plot as satisfying the Sieckmann criteria, noting that the representation was detailed and defined the constituent elements with a scientific temperament, allowing competent authorities to determine the precise metes and bounds of the protection. This creates a new standard where a smell is no longer just a floral fragrance but a specific coordinate set in a 7-dimensional vector space. The Controller General further observed that the various smells would get activated in the order of their strength, with the strongest smell getting activated first, providing the necessary objectivity that previous applications lacked.
The Arbitrary Defense: Why Tyres Can Smell Like Roses
A critical question arises regarding the scope of this protection: does this mean any brand can now trademark a scent? Could a perfume company trademark the smell of its latest cologne using this same 7-dimensional graph? The answer lies in the legal distinction between arbitrary and functional marks. Sumitomo Rubber Industries succeeded largely because of the specific class of goods they applied for: Class 12 (tyres for vehicles). In the order, the Controller General explicitly noted that the scent of roses bears no direct relationship with the nature, characteristics, or use of tyres, making the smell arbitrary in its application to such goods. When a consumer encounters a tyre that smells of roses rather than burning rubber, the sensory contrast is stark, and the scent serves no technical function other than to act as a badge of origin, identifying the source of the goods just as effectively as a visual logo. This logic serves as a safeguard against the monopolization of useful scents. If a company attempted to register this same rose vector for a perfume or an air freshener, the application would likely fail because, in those cases, the scent is the product itself, it is functional. Granting a trademark for a perfume’s scent would create a permanent monopoly on a product feature, stifling competition. The Sumitomo precedent works specifically because a rose-scented tyre is legally absurd, making it legally distinct.
The Proposed to be Used Paradox
One of the most intriguing aspects of the order is the usage status. The application was filed on a proposed to be used basis. Typically, non-conventional marks like shapes or colors require evidence of acquired distinctiveness, where the applicant usually has to prove that the public has been exposed to the mark for years and has come to associate it with the brand. Sumitomo, however, bypassed this requirement completely by establishing that the mark was arbitrary, thereby successfully arguing that it was inherently distinctive. The logic accepted by the Registry is that the smell is so unexpected in the context of tyres that it requires no prior education of the consumer. The moment a customer smells the tyre, they will know it is unique to the applicant because no other tyre in the market smells like a garden. This experience would leave a very strong impression upon such a customer as it would be in stark contrast with the smell of rubber usually expected near a highway. This creates a powerful precedent for future applicants, suggesting that if a brand chooses a sensory mark that is sufficiently random and disconnected from the product’s function, they may be able to secure registration without spending decades building market awareness, thus shifting the burden from history of use to uniqueness of choice.
The Limitations of the 7-Dimensional Model
While the acceptance of the 7-dimensional vector is a triumph, it is not without potential scientific and legal complications. The model relies on the premise that all smells can be accurately categorized within these seven specific corners. This raises a resolution problem: if the graph uses a simple integer scale, the number of possible unique permutations is mathematically limited. While the number of combinations is large, it is finite compared to the infinite complexity of organic chemistry. The graphical representation in the order shows distinct levels, but the scientific reality of scent is continuous. Furthermore, complex modern scents may not fit neatly into these seven boxes. Common scent profiles in modern perfumery, such as metallic or oceanic notes, do not have a dedicated axis on the IIIT Allahabad graph. A leather scent might have to be forced into the pungent or woody categories, potentially resulting in a graphical representation that does not accurately reflect the olfactory reality. This limitation suggests that while the 7-dimensional vector is a valid starting point, it may not be the final frontier. As more complex smell marks are filed, the Registry may face situations where two distinct scents produce identical vector graphs because the model lacks the resolution to distinguish between them, leading to a new form of graphical conflict where the map does not match the territory.
Conclusion: A Fragrant Future for Indian IP
The registration of the smell reminiscent of roses marks a pivotal moment in India’s intellectual property journey, demonstrating a willingness by the Indian Trade Marks Registry to interpret the law dynamically and adopt scientific solutions to legal problems. For the legal fraternity, this order provides a roadmap for registering non-conventional marks: rely on objective data rather than subjective description. The Controller General emphasized that trademark law serves as an enabler of trade, protecting goodwill while preventing confusion, and by accepting a graphical representation that is detailed, clear, and scientific, the Registry has fulfilled this mandate. For the branding world, it opens the door to sensory marketing where a brand can be identified with eyes closed. However, it also establishes clear boundaries: the protection is robust for arbitrary uses like scented tyres but remains firmly closed for functional uses like perfumes. India has effectively set a new global benchmark. By integrating the 7-dimensional vector model into the trademark register, the Controller General has proven that with the right scientific methodology, even the most elusive scents can be captured, quantified, and legally protected. The law has finally caught up with the senses.
Bibliography
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Authored by: Mr. Danny Scariya, A final Year Student at Symbiosis Law School, Pune
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