India's First Smell Mark: Decoding the Graphical Representation Breakthrough Under the Trade Marks Act, 1999

Introduction

A watershed moment in Indian intellectual property history unfolded on 21st November, 2025, when the Controller General of Patents, Designs and Trademarks (CGPDTM) issued a landmark order granting registration to India's very first olfactory trademark — commonly referred to as a "smell mark." The applicant, Sumitomo Rubber Industries Ltd. (Japan), successfully secured this unprecedented recognition, fundamentally altering the contours of what constitutes a protectable "mark" under Indian law.

While jurisdictions such as the United Kingdom and the United States have long permitted the registration of olfactory marks, India's trademark regime had remained conventionally anchored to visual or graphical forms of representation. This order, therefore, does not merely represent an administrative approval — it signals a profound jurisprudential evolution in how Indian trademark authorities interpret non-conventional marks.

The registration of Sumitomo's olfactory mark is not just a legal first — it is a transformative interpretive shift that redefines the boundaries of the Trade Marks Act, 1999.

Two fundamental legal hurdles stood in the way of this registration:

  1. Graphical Representation — whether an olfactory mark could satisfy the requirements under Section 2(1)(zb) of the Trade Marks Act, 1999, which demands that a mark be capable of being represented graphically in a clear, precise, and durable manner.
  2. Distinctiveness — whether the scent in question possessed sufficient distinguishing character in the perception of an average consumer, so as to differentiate the goods of one enterprise from those of another.

To address both challenges, amicus curiae Shree Pravin Anand collaborated with scientists from IIIT Allahabad to develop a seven-dimensional (7D) vector space model that maps the fundamental olfactory components present in the product across seven odour categories — floral, fruity, woody, nutty, pungent, sweet, and minty. This scientifically constructed representation enabled an objective visual depiction of the tyre's unique scent profile, thereby satisfying the graphical representation standard prescribed under the Trade Marks Act, 1999.

Crucially, the CGPDTM also interpreted the definition of "mark" under the Act as inclusive rather than exhaustive, affirming that non-conventional marks — including those appealing to senses beyond sight — fall within the legislative ambit of the statute.

Historical Background: From Visual Rigidity to Scientific Flexibility

The 1958 Regime and Its Restrictive Framework

To fully appreciate the significance of this order, one must trace the legislative journey of the definition of a "mark" in Indian trademark law.

Under Section 2(1)(j) of the Trade and Merchandise Marks Act, 1958, a "mark" was confined to a device, brand, heading, label, ticket, name, signature, word, letter, numeral, or any combination thereof. While the use of the word "includes" signalled a degree of interpretive flexibility, the practical scope remained firmly tethered to visual elements.

More significantly, Section 2(2)(a) of the 1958 Act expressly mandated that any reference to the use of a mark must be capable of being printed or visually represented. This provision functioned as a legislative straitjacket — effectively barring any non-visual sensory element from qualifying as a registrable mark. Since a scent cannot be printed or visually depicted in any conventional sense, olfactory marks were, as a matter of both logic and law, excluded from registration under the old framework.

The 1999 Liberalisation and TRIPS Compliance

The enactment of the Trade Marks Act, 1999 marked a decisive regulatory shift, driven in large part by India's obligations under the World Trade Organisation's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

Article 15 of TRIPS establishes that any sign capable of distinguishing the goods or services of one enterprise from those of another must be eligible for registration as a trademark. Importantly, while TRIPS permits member states to require signs to be visually perceptible, it does not impose this as a mandatory condition.

India's 1999 legislation responded to this mandate by: