The Trade Marks Registry has accepted the country’s first-ever olfactory trademark, a “floral fragrance/smell reminiscent of roses as applied to tyres”, filed by Sumitomo Rubber Industries Ltd., Japan, holding that it satisfies the criteria laid down for registration under the Trade Marks Act, 1999, as it is clear, precise, self-contained, intelligible, objective and is represented graphically.

The trademark application was filed for protection for rose-scented tyres in class 12- “tyres for vehicles” – on a “proposed to be used basis”. The application had initially been objected to for lack of distinctiveness and absence of graphical representation, a mandatory requirement under Section 2(1)(zb) of the Trade Marks Act, 1999.

To resolve this, the Registry appointed veteran IP lawyer Pravin Anand as amicus curiae, whose scientific inputs, along with a groundbreaking 7-dimensional graphical representation developed by researchers at IIIT Allahabad, became pivotal to the decision. The graph visually mapped the rose fragrance across seven fundamental smell dimensions, including floral, fruity, woody, nutty, pungent, sweet, and minty.

After analysing international jurisprudence and the scientific report, the Controller General of Patents, Designs and Trade Marks, Prof. (Dr.) Unnat P. Pandit, held that the mark was clear, precise, intelligible, objective, and distinctive, satisfying the statutory threshold. The Registry held that the rose scent on tyres is so unusual that a consumer smelling it from a passing vehicle would immediately associate it with the Applicant, as it sharply contrasts with the normal rubber smell. Since the fragrance of roses has no natural link to tyres, it is considered arbitrary. This uniqueness makes the olfactory mark inherently distinctive.

Consequently, the Registry has directed the mark to be advertised under  Section 20 of the Trade Marks Act, 1999, as an “Olfactory Trademark” in Class 12 (tyres) on a proposed-to-be-used basis.

This decision places India among the few jurisdictions that have recognised smell trademarks, opening the door for more non-conventional marks in the future.

Appearances

Applicant- Ms. Swati Sharma (Partner and Head- Intellectual Property), Revanta Mathur (Partner), and Sannat Chandna (Principal Associate- Designate)

 Amicus Curiae- Sh. Pravin Anand

Graphical Representation prepared by- Prof. Pritish Varadwaj, Prof. Neetesh Purohit and Dr. Suneet Yadav of the Indian Institute of Information Technology, Allahabad