SUMITOMO’S ROSE-SECENTED TYRES: INDIA’S FIRST SMELL TRADEMARK GOT ACCEPTED

INTRODUCTION

In a landmark step for non-traditional trademarks in India, the Trade Marks Registry has accepted an application by Sumitomo Rubber Industries Ltd. (Japan) to register a smell mark for advertisement in India. The mark described as: FLORAL FRAGRANCE/ SMELL REMINISCENT OF ROSES AS APPLIED TO TYRES” (Application No. 5860303, Class 12). The Indian Registry accepts a novel scientific graphical representation of the smell (A Seven-Dimensional Vector) prepared by a researcher at IIIT-Allahabad and directs the application for advertisement in the Trade Marks Journal. This decision brings India squarely into global debates on olfactory marks, representation standards and enforceability of sensory branding. An excerpt from the Trademark Registry:

Application Status: Accepted & Advertised

Journal No.: 2236, dated Nov 2024, 2025

BACKGROUND

The Sumitomo has historically marketed tyres with that rose-like fragrance feature intentionally as part of their branding, not as an accidental occurrence. The mark earlier had been registered in the United Kingdom (UK Reg. No. UK00002001416, application 31 October 1994; registered 1996).

In the present case, the company filed the present TM application on 23^rd March,2023, on a “proposed to be used” basis in India, Delhi, jurisdiction. The Indian Registry examined the application and raised objections under Section 9(1)(a) (lack of distinctiveness) and 2(1)(zb) (Capability of graphical representation)[1]. The Registry subsequently appointed an amicus curia  (Adv. Shri Pravin Anand) to assist and receive detailed scientific and legal submissions, including a graphical model prepared by IIIT-Allahabad researchers.[i]

BRIEF FACTS OF THE CASE:

1. Applicant (Sumitomo Rubber Industries Ltd. (Japan)) filed the Application No. 5860303, class 12 (tyres for vehicles) on 23 March 2023.
2. Initially, the application was filed under the category of “Word mark” from the available categories of trademarks, such as word, device, colour, 3-dimensional and sound mark.
3. Without such selection, maybe the application would not be accepted by the software.
4. Mark sought was, “FLORAL FRAGRANCE/ SMELL REMINISCENT OF ROSES AS APPLIED TO TYRES” as (olfactory mark)
5. Registry object the mark as lacking distinctiveness u/s Section 9(1)(a) and absence of graphical representation 2(1)(zb).
6. Initially Applicant relied on the following:
7. Prior UK registration of their smell mark
8. Long commercial use since 1995, as part of their branding
9. Comparative international jurisprudence where olfactory marks have been accepted, and
10. At a later stage submit a scientific graphical representation (a seven-dimensional vector ) of smell mark was prepared by IIT- Allahabad.

CONTENTION OF PARTY, AMICUS CURIAE AND REGISTRY:

Applicant’s contentions:

1. Distinctive Nature of the Smell Mark: The applicant submitted that the mark represents a rose-like floral fragrance infused into tyres, used by them since 1995 as part of their branding strategy. Through continuous innovation, investment in R&D, and global publicity, the rose fragrance has become strongly associated with the applicant’s tyres. It is widely recognized and enjoys a significant reputation in the market.
2.  Prior International Registration: The Applicant smell mark was earlier registered in the United Kingdom (UK00002001416; 1996), which was the first olfactory trademark recognized in the UK. The applicant also submitted the 26 such smell mark applications, which were granted registration in Australia, Costa Rica, the EU, UK jurisdictions, demonstrating global acceptance of smell marks as distinctive
3. Adequacy of verbal description: The scent of roses is universally known. Hence, a simple verbal description, “FLORAL FRAGRANCE/ SMELL REMINISCENT OF ROSES AS APPLIED TO TYRES” is sufficient for representation, unlike complex or ambiguous smells requiring technical diagrams.
4. Arbitrary and Inherent distinctiveness: The rose scent has no natural connection to tyres, making it arbitrary and inherently distinct. An average consumer can easily identify the smell and associate it with the applicant.
5. International Precedents: The smell marks have been registered in Australia, Costa Rica, EU, UK, and USA based solely on descriptive statements. The applicant submitted 26 such examples to show global acceptance.
6. No likelihood of confusion: A person of average intelligence can easily recognize the smell of roses. The mark meets the test laid down in Siekmann (2002) and Senta Aromatic Marketing (1999) cases for clarity, precision, and recognizability.
7. Compliance with Section 2(1)(zb):
8. Graphical Representation: The verbal statement is clear and precise
9. Distinctiveness: The scent is arbitrary for tyres.
10. International Recognition: UK registration affirms distinctive character.
11. Smell as a Trademark: The applicant argued that a smell can fulfil all core trademark functions like identification, quality guarantee, advertising, and brand image and is therefore capable of trademark protection.
12. Graphical Representation: To address the Registry’s objection, the Applicant adopted the seven-dimensional vector created by IIT Allahabad, mapping the scent across seven fundamental smell categories. This provided a precise and durable representation of Smell mark.
13. Final submission: The applicant requested that the application No. (Class 12) be accepted for advertisement as an Olfactory Trademark, based on the combined verbal description and scientific graphical representation.

Amicus Curiae Position:

The Amicus curiae, Mr. Anand, was supportive of the grant of registration to the instant smell mark. Mr. Anand sought assistance from the 3 inventors of IIIT Allahabad, who, using the technology developed at the institute, have made the following graphical representation:

Source: Annexure A of the order of the Trade Mark Registry dated Nov 21, 2025.[ii]

Description of Representation “A complex mixture of volatile organic compounds released by the petals interacts with our olfactory receptors, creating a rose-like smell. Using the technology developed at IIIT Allahabad, this rose-like smell is graphically presented above as a vector in the 7-dimensional space wherein each dimension is defined as one of the 7 fundamental smells, namely floral, fruity, woody, pungent, sweet, and minty”

Mr. Anand suggested that the Applicant has no difficulty in accepting a graphical representation to visually indicate the smell of a rose, along with the statement “Floral Fragrance/ Smell Reminiscent of Roses as applied to Tyres” which accurately defines the smell mark.

ANALYSIS OF REGISTRY:

1. The Core question for Determination: The registry identified two statutory requirements u/s 2(1)(zb) as central to the decision: (a) whether the rose-scent mark can be graphically represented, and (b) whether the mark possesses distinctiveness capable of identifying the applicant’s tyres from others. Since smell marks are not expressly excluded u/s 2(1)(m), they may be registrable if these two mandatory tests are met.

• Purpose of Trademark Law: The registry reiterated that trademark law is meant to enable trade, not restrict it. It protects a business’s goodwill in identifiable marks while preventing consumer confusion. Therefore, non-traditional marks like scents require careful but flexible interpretation as long as they fulfil the statutory requirements.

• Graphical Representation Analysis: A major obstacle was the absence of a traditional graphical depiction. The applicant adopted a scientific 7-dimensional vector representation created by IIT Allahabad, mapping the rose-like smell across seven fundamental scent categories (Floral, fruity, woody, nutty, pungent, sweet, minty).

After careful Analysis Registry held that:

• Conventional word or device-type graphics cannot reasonably capture a smell.
• The scientific vector representation objectively defines the scent’s composition and intensity.
• It clearly demarcates the scope of protection and is precise, intelligible, accessible, and objective.

Thus, the representation satisfies the mandatory graphical requirement.

• Distinctiveness Analysis: Unlike visual marks, smell marks require deeper evaluation. The Registry found that:
• The scent mark of roses has no natural connection to tyres, making the mark arbitrary and inherently distinctive.
• A tyre that emits a rose fragrance rather than the usual rubber smell creates a clear, memorable association with a single commercial source.
• The smell would be instantly recognizable to encountering it on roads or in proximity to vehicles.

ORDER OF REGISTRY:

On 21 November 2025, the controller General issued an order accepting the mark as an “olfactory mark”, declaring that the 7-dimensional vector representation is clear, precise, self-contained, intelligible, durable and objective, and directing advertisement u/s 20 of the Trademark Act, 1999. The Registry acknowledged the scientific inputs from IIT- Allahabad, and the comparative legal analysis submitted on record by amicus curiae and agent. The order effectively recognizes the viability of scientifically anchored graphical depiction for non-conventional marks.;

The Statutory twin requirements are (i) graphical representability and (ii) distinctiveness. The Registry evaluated the IIT graphical representation for clarity, objectivity, durability and intelligibility and found it adequate. On distinctiveness, the Registry accepted that the rose scent is arbitrary to tyres and capable of distinguishing the Applicant’s product in the marketplace. Consequently, the application was accepted for advertisement.[iii]

LOOPHOLES:

a) Might help an expert but not an everyday consumer: The applicant submitted a 7-Dimensional “Olfactory Vector” (a radar-chart style graph)developed by researchers to describe numerically how much of different “smell families” (floral, woody, fruity, etc.) make up the “rose-like” tyre scent. Such a technical representation is understandable to scientists, perhaps not to ordinary consumers. It ultimately depends on expert evidence, not everyday perception. it raises doubts over whether the smell will effectively function as a “mark” in practice, as required by trademark law.[2]

b) Future variability of smell-description standards: if a different “rose variant“ produces a slightly different vector, will it amount to infringement, or will it be treated as a new smell? The law doesn’t yet foresee these variations.

c) Misuse in the sensitive sector, like medicine: Allowing smell marks could extend monopolies beyond scope, especially problematic if applied to sensitive sectors (e.g. pharmaceutical, medicine). It could lead to “non-visual passing off” A company suing others merely because another product has a similar smell, even if visually or logistically different.

d) Infringement and enforcement: Determining of an olfactory trademark is complex, as comparing scents requires specialized expertise and often involves subjective judgment. Enforcement is also difficult because proving scent-based infringement with concrete evidence can be challenging.

CONCLUSION

The decision affirms that the impugned smell mark meets the statutory requirements under the Trade Marks Act, 1999, particularly in terms of clarity, precision, objectivity, and graphical representation. By accepting the mark and directing its advertisement as an olfactory mark for tyres, the Registry has set an important precedent in recognising non-traditional trademarks in India.

This outcome also highlights the growing intersection of technology and trademark law. The innovative seven-dimensional graphical model developed by the IIIT Allahabad team, along with the comprehensive legal submissions by the amicus curiae and the applicant’s agent, played a pivotal role in establishing the mark’s registrability. The decision therefore underscores not only the legal validity of such marks but also the importance of scientific and comparative legal inputs in shaping the future of olfactory trademark protection in India.

Read our latest article: RULE 43: COMPLETE GUIDE TO CONTENTS OF NOTICE OF OPPOSITION UNDER THE TRADE MARKS RULES, 2017 – J.P. Associates

Author- Priyanshi Tiwari, 4th Year Law Student, Prestige Institute of Management and Research, Gwalior.

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[1] https://indiankanoon.org/doc/493060/

[2] https://theleaflet.in/digital-rights/law-and-technology/decoding-indias-first-accepted-smell-trademark-rose-fragranced-tyres

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[i] Application, application.pdf

[ii] Graphical Representation, graphical representation.pdf

[iii] Order, ORDER.pdf – https://jpassociates.co.in/wp-content/uploads/2025/12/ORDER-1.pdf