India’s First Olfactory Trademark: A Landmark Registration by the Trade Marks Registry and Its Implications for Non-Conventional Mark Protection Under the Trade Marks Act, 1999
By Guru Legal
Keywords
olfactory trademark; smell mark; non-conventional trademark; Trade Marks Act 1999; Trade Marks Registry; graphical representation; distinctiveness; Section 2(1)(zb); TRIPS Agreement; TMA 1999; unconventional marks; sensory marks; India IP; trademark registration 2025
Abstract
On 21 November 2025, the Office of the Controller General of Patents, Designs and Trade Marks of India accepted for registration the country’s first olfactory trademark a smell mark. This decision constitutes a landmark development in Indian intellectual property law, extending the boundaries of trademark protection beyond conventional visual marks to encompass sensory experiences. This article examines the legal framework for trademark registration in India under the Trade Marks Act 1999, the evolving jurisprudence and regulatory approach to non-conventional marks including sound, colour, and olfactory marks, the specific legal challenges posed by the graphical representation requirement and the distinctiveness threshold for smell marks, comparative developments in the European Union and the United States, and the implications of the Registry’s decision for brand protection strategy and IP law practice in India.
I. Introduction
A trademark, at its core, is a sign that distinguishes the goods or services of one undertaking from those of others. Indian trademark law, codified in the Trade Marks Act 1999 (TMA 1999) and the Trade Marks Rules 2017, draws upon a broad statutory definition of mark to encompass a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging, or combination of colours or any combination thereof. The Act’s definition is deliberately non-exhaustive, and Section 2(1)(zb) defines trademark as a mark capable of being represented graphically and capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging, and combination of colours.
The acceptance of an olfactory trademark by the Trade Marks Registry on 21 November 2025 represents a significant extension of the boundaries of registrable marks in India. An olfactory mark a scent or smell associated with a product or service falls within the category of non-conventional or unconventional trademarks, which also includes sound marks, colour marks, motion marks, hologram marks, and taste marks. The registration of such marks has been a subject of debate and progressive judicial and regulatory development in major IP jurisdictions globally.
This article proceeds as follows. Part II examines the legal framework for trademark registration under the TMA 1999. Part III analyses the specific challenges of registering olfactory marks, including graphical representation and distinctiveness. Part IV considers comparative developments in the EU and the USA. Part V evaluates the implications of the Registry’s 2025 decision. Part VI advances reform recommendations. Part VII concludes.
II. The Legal Framework for Trademark Registration in India
The Trade Marks Act 1999, which replaced the Trade and Merchandise Marks Act 1958 and brought Indian trademark law into conformity with the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), prescribes a comprehensive framework for the registration, protection, and enforcement of trademarks. Section 9 of the TMA 1999 sets out the absolute grounds for refusal of registration, which include marks devoid of any distinctive character; marks that consist exclusively of indicators that may serve to designate the kind, quality, quantity, intended purpose, values, geographical origin, or other characteristics of the goods or services; and marks that have become customary in the current language or established practices of trade.
Sections 11 and 12 of the TMA 1999 set out relative grounds for refusal, primarily based on likelihood of confusion with earlier registered marks. Section 18 prescribes the procedure for application, requiring the applicant to submit a representation of the mark in the prescribed format. The Trade Marks Rules 2017, Rule 25, requires that a mark be represented clearly, precisely, self-contained, and easily accessible such that the competent authorities and the public can determine the clear and precise subject matter of the protection afforded to its proprietor.
The requirement of graphical representation has historically been the principal legal obstacle to the registration of non-conventional marks. A sound mark may be graphically represented by a musical notation or a spectrogram; a colour mark by reference to an internationally recognised colour classification system such as Pantone. An olfactory mark, however, presents a fundamental representational challenge: scent cannot be expressed by conventional visual or textual means with the precision necessary to define the scope of trademark protection. The Trade Marks Registry’s acceptance of the first olfactory mark in India suggests that the Registry has developed or adopted a representational standard potentially a chemical formula, a textual description, or a spectrographic representation sufficient to satisfy the statutory requirement.
III. The Specific Challenges of Olfactory Trademark Registration
The registration of olfactory marks raises three interrelated legal challenges: graphical representability, distinctiveness, and the risk of monopolisation of functional scents.
The graphical representability requirement has been the decisive hurdle for olfactory trademark registration in both the European Union and India. The Court of Justice of the European Union in Sieckmann v. Deutsches Patent- und Markenamt (Case C-273/00 [2002] ECR I-11737) established a six-part test for the adequacy of graphical representation: the representation must be clear, precise, self-contained, easily accessible, intelligible, durable, and objective. Applying this test, the CJEU held that the registration of a scent mark represented by a chemical formula, a sample, or a verbal description did not satisfy the graphical representation requirement, since none of these forms of representation was sufficiently clear, precise, or objective. This ruling effectively precluded the registration of olfactory marks in the EU until the introduction of the EU Trade Mark Regulation 2017, which replaced the graphical representation requirement with a requirement that the mark be represented in the Register in a manner enabling the authorities and the public to determine the clear and precise subject matter of the protection afforded a standard that potentially admits of digital representations including olfactory spectrographs.
In the United States, the registration of scent marks has been possible since the Lanham Act does not impose a graphical representation requirement analogous to that of the EU or India. The US Patent and Trademark Office has registered a number of scent marks, including the scent of fresh-cut grass for tennis balls (In re Clarke, 17 USPQ2d 1238 (TTAB 1990)). The distinctiveness requirement that the scent must be non-functional and capable of identifying the source of the goods or services is the primary threshold applied by the USPTO in evaluating olfactory mark applications.
Distinctiveness is equally central to the evaluation of olfactory marks under the TMA 1999. A scent that is inherent to the product such as the scent of flowers for a floral perfume or the scent of detergent for a washing powder is functional and non-distinctive, and therefore not registrable. Only a scent that is arbitrary or unusual in relation to the product, and that has come to be associated by consumers with a particular source, may satisfy the distinctiveness requirement. Proving acquired distinctiveness through use secondary meaning in the trademark law lexicon will typically require substantial evidence of exclusive use over a prolonged period, extensive advertising featuring the scent as a brand identifier, and consumer recognition surveys.
IV. Implications of the 2025 Registry Decision for Indian IP Practice
The Trade Marks Registry’s acceptance of India’s first olfactory trademark in November 2025 marks a pivotal development in the evolution of Indian trademark law. Its implications are significant across several dimensions.
First, the decision establishes that olfactory marks are registrable in India as a category of non-conventional trademark, provided the mark satisfies the requirements of graphical representation and distinctiveness under the TMA 1999. This opens a new avenue for brand protection for businesses in industries where scent is a significant component of brand identity, including luxury perfumery, hospitality, retail, and consumer products.
Second, the decision creates regulatory precedent for the Trade Marks Registry in evaluating future olfactory mark applications. The form of representation accepted by the Registry whether a chemical formula, a textual description, or a spectrographic or digital representation will be critical in determining the standard applicable to subsequent applications. Clarity in the Registry’s published examination guidelines will be essential to providing applicants with a reliable and transparent framework for olfactory trademark applications.
Third, the decision raises important questions about the scope of protection afforded to registered olfactory marks and the remedies available to proprietors in the event of infringement. Since olfactory marks are inherently difficult to identify and verify by sensory examination alone, the enforcement of olfactory trademark rights will require the development of specialised analytical evidence standards for use in infringement proceedings before the Trade Marks Registry, the Intellectual Property Appellate Board, and civil courts.
V. Reform and Recommendations
The Trade Marks Registry should publish detailed examination guidelines for non-conventional marks, including olfactory marks, specifying the forms of representation accepted, the evidence required to establish distinctiveness, and the procedure for examination of non-conventional mark applications. Clear and accessible guidelines would reduce uncertainty for applicants and facilitate consistent examination practice.
The Trade Marks Rules 2017 should be amended to expressly address the registration of non-conventional marks, including sound, colour, shape, and olfactory marks, providing specific provisions governing representation, distinctiveness evidence, and opposition procedures for each category. The current Rules are insufficiently specific about non-conventional marks, creating regulatory ambiguity that inhibits investment in non-conventional branding.
India should accede to the Singapore Treaty on the Law of Trademarks 2006, which provides a harmonised framework for the filing and registration of trademarks including non-traditional marks, and align its trademark registration procedures with the Singapore Treaty’s requirements. This would facilitate the international registration of Indian trademarks, including non-conventional marks, under the Madrid System and strengthen India’s position as a leading intellectual property jurisdiction.
VI. Conclusion
The acceptance of India’s first olfactory trademark by the Trade Marks Registry in November 2025 is a landmark development in the evolution of Indian intellectual property law, extending the boundaries of trademark protection to encompass sensory experiences beyond the visual. The decision reflects a progressive interpretation of the TMA 1999’s broad definition of mark and the registrability criteria of graphical representation and distinctiveness. It opens significant new opportunities for brand protection in India, particularly for businesses in industries where scent is a primary component of brand identity.
The challenge now is to build upon this precedent by developing clear regulatory standards for the registration of non-conventional marks, providing reliable and consistent enforcement mechanisms for proprietors of such marks, and aligning India’s trademark law with the most progressive international practices in this evolving domain. India’s aspiration to be a leading intellectual property jurisdiction demands that its trademark law keeps pace with the innovations in brand identity that the modern economy continues to generate.
Frequently Asked Questions
Q1. What is an olfactory trademark and what is the significance of India’s first such registration?
An olfactory trademark is a trademark constituted by a scent or smell that is used to identify the goods or services of a particular undertaking and to distinguish them from those of others. India’s first olfactory trademark was registered by the Trade Marks Registry on 21 November 2025, representing a landmark extension of Indian trademark protection to non-conventional sensory marks. The registration signals India’s recognition that brand identity may reside in sensory experiences beyond the visual, aligned with progressive developments in EU and US trademark law.
Q2. What are the legal requirements for registering an olfactory trademark under the Trade Marks Act 1999?
Under the TMA 1999, a trademark must be capable of being represented graphically and capable of distinguishing the goods or services of one person from those of others. For olfactory marks, the graphical representation requirement historically the principal obstacle to registration requires that the scent be represented in a form that is clear, precise, self-contained, accessible, intelligible, and objective. Distinctiveness requires that the scent not be functional or inherent to the product, and that it has come to be associated by consumers with a particular source.
Q3. How does the EU approach to olfactory mark registration compare with India?
The CJEU in Sieckmann v. Deutsches Patent- und Markenamt (Case C-273/00 [2002]) held that a scent mark represented by a chemical formula, sample, or verbal description did not satisfy the graphical representation requirement. This effectively precluded EU olfactory mark registration until the EU Trade Mark Regulation 2017 replaced the graphical representation requirement with a standard permitting digital representations. India’s acceptance of its first olfactory mark in 2025 suggests alignment with this more permissive international trend.
Q4. Can a functional scent be registered as a trademark?
No. A scent that is inherent or functional in relation to the product such as the scent of flowers for a floral perfume or the scent of lemons for a lemon-flavoured product is non-distinctive and therefore not registrable as a trademark under the absolute grounds for refusal in Section 9 of the TMA 1999. Only a scent that is arbitrary or unusual in relation to the product, and that has acquired distinctiveness through use as a source identifier, may be registered.
Q5. What reforms are recommended to facilitate non-conventional trademark registration in India?
Three principal reforms are recommended: first, the Trade Marks Registry should publish detailed examination guidelines for non-conventional marks specifying accepted forms of representation and required evidence; second, the Trade Marks Rules 2017 should be amended to expressly address the registration of non-conventional marks; and third, India should accede to the Singapore Treaty on the Law of Trademarks 2006 to facilitate international harmonisation of non-conventional mark registration procedures.
Bibliography
Primary Sources
Trade Marks Act, 1999, Sections 2(1)(zb), 9, 11, 12, 18.
Trade Marks Rules, 2017, Rule 25.
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), 1994, Article 15.
Singapore Treaty on the Law of Trademarks, 2006.
EU Trade Mark Regulation (2017/1001).
Sieckmann v Deutsches Patent- und Markenamt (Case C-273/00) [2002] ECR I-11737 (CJEU).
In re Clarke 17 USPQ2d 1238 (TTAB 1990) (US).
Trade Marks Registry of India, Registration Order dated 21 November 2025 (Olfactory Mark).
Ralf Sieckmann v Deutsches Patent- und Markenamt [2002] (EUIPO Case).
Smell Marks in India: Registry Registration Order (2025).
Secondary Sources
Pravin Anand and Kartik Khanna, Law of Trade Marks in India (LexisNexis, 2020).
Cornish, Llewelyn and Aplin, Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights, 9th ed (Sweet and Maxwell, 2019).
Lionel Bently and Brad Sherman, Intellectual Property Law, 5th ed (Oxford University Press, 2022).
WIPO, Making a Mark: An Introduction to Trademarks for Small and Medium-Sized Enterprises (WIPO, 2020).
Sumathi Chandrashekaran and Arul Scaria, Intellectual Property Law and Policy in India (Oxford University Press, 2020).
Max Planck Institute for Intellectual Property, Study on the Overall Functioning of the European Trade Mark System (MPI, 2011).
Graeme Dinwoodie and Mark Janis, Trade Mark Law and Theory (Edward Elgar, 2008).
CGPDTM, Annual Report 2023-24 (Controller General of Patents, Designs and Trade Marks, Government of India, 2024).
