INTRODUCTION
Trademarks are things people can see, like words, logos and symbols and relate them to some brand or product. People know what these things are because they see them. Now, companies are trying to make people remember their brands in other ways too. They want people to remember their brands when they hear sounds or feel certain textures. Some companies are even using smells to make people think of their brand. This is all done to make people associate these things with the company that makes the product. Trademarks are not just what people see anymore; they are also what people hear, feel and smell. Companies are doing this to make their trademarks stronger and more memorable. India’s first smell trademark is now a thing. The Trade Marks Registry just accepted it. This is a deal for Indian trademark law.
They registered a mark called “FLORAL FRAGRANCE / SMELL OF ROSES AS APPLIED TO TYRES.[1]“This is different from the kinds of trademarks we see. It shows that the people in charge are thinking about the Trade Marks Act, 1999, in a way. This change is important because it tries to balance what the law says with what’s actually happening in the business world, which is changing really fast. India’s first smell trademark is a sign that things are moving forward. Recognising a smell as a trademark brings up some questions. How do we protect things that are not seen, like smells, under Indian law? This is really about understanding trademarks in a new way. The recognition of a smell as a trademark raises questions about visual marks, like smells. The recognition of an olfactory mark or a smell makes us think about how we can represent, perceive and protect these kinds of marks under law, which in turn helps us learn more about trademarks and the laws surrounding them, specifically the recognition of olfactory marks.[2]
FACTUAL BACKGROUND AND OBJECTIONS RAISED
The application was filed by Sumitomo Rubber Industries Ltd. for tyres falling under Class 12 on a proposed-to-be-used basis. The applicant sought protection for a rose-like floral fragrance infused into its tyres, claiming that the scent functioned as a source identifier and had been used internationally as a branding tool. Upon examination, the Trade Marks Registry raised objections under Section 9(1)(a) of the Trade Marks Act, 1999, citing lack of distinctiveness,[3] and under Section 2(1)(zb), contending that the mark was incapable of graphical representation[4]. These objections reflected long-standing doctrinal concerns associated with smell marks, particularly the apprehension that such marks may be vague, subjective, and incapable of precise delineation. Given the novelty and complexity of the issue, an amicus curiae was appointed to assist the Registry, indicating the broader legal significance of the matter.[5]
STATUTORY FRAMEWORK AND INTERPRETATIVE APPROACH
The Trade Marks Act of 1999 needs to be looked at carefully when someone applies for a Trade Marks Act application. The Trade Marks Act has a section that says what a trademark is. Section 2(1)(zb)[6] Section 2 of the Trade Marks Act says a trademark is something that can be drawn and that can tell the difference between the goods or services of one person and the goods or services of another person. It is worth noting that the Trade Marks Act does not say that trademarks have to be something that people can see. The Trade Marks Act also has another section, Section 2(1)(m),[7] That defines what a mark is, and it does so in a way that includes things, so the kinds of marks that can be protected by the Trade Marks Act can change over time.
The Trade Marks Act is important here because it helps figure out what a trademark is and what kinds of marks the Trade Marks Act can protect. The Registry noticed that just because smell marks are not mentioned, it does not mean they are not allowed. What really matters is whether these smell marks can meet the rules that say they have to be represented in a way that can be seen and that they have to be different from things. This way of understanding the law is based on what the law’s supposed to do. It makes sure that the goals of trademark law are met without being limited by ways of thinking. The Registry understood that the law had to change with the way businesses work. It also has to stick to the basic principles that are written in the law. The Registry is talking about smell marks and how they fit into trademark law. Smell marks are a part of this because they can be used to identify a company or product.[8].
GRAPHICAL REPRESENTATION OF THE OLFACTORY MARK
Registering smell trademarks is really tough because you have to show what the smell looks like in a graphical representation. The people in charge said that this picture does not have to be a picture that you can see, but it has to be clear and precise, so everyone knows what the smell composition is. The person who wanted to register the smell trademark used a type of picture created by experts from the Indian Institute of Information Technology, Allahabad. They show what the smell trademark is, so it can be protected. The picture showed the rose-like smell as a line in a space with seven parts. These parts are like the things we smell, such as flowers, fruits, wood, nuts, sweet things, mint and strong smells. The people in charge accepted this graphical representation because it was easy to understand, made sense, reflected scientific explanations and was not based on opinions. They also thought it could clearly show what the trademark is. It was also said that if we only allow pictures that we can see, it would not be fair to creative ways of making brands. The rose-like smell trademark would be an example of this. The acceptance of a scientific representation, therefore, reflects an adaptive understanding of Section 2(1)(zb)[9], aligned with the functional purpose of the provision.
ASSESSMENT OF DISTINCTIVENESS
The Registry looked at The Trade Marks Act, 1999[10]. They checked the part that says a trademark has to be special, which is Section 9(1)(a)[11]. They thought about how the smell of rosess not related to tyres at all. Usually, people think tyres smell like rubber. So, the Registry said that putting a smell on tyres is unique, and that is what makes it special.
The registry thought about what a normal person would think about someone who is not an expert and might not remember things perfectly. The Registry figured that if tyres have a smell that’s not usual, like roses, then people will remember that this smell belongs to one company that makes tyres. The Trade Marks Act is important here because it talks about what makes a trademark special, like the smell of roses, on tyres. The decision explains that what makes something unique is not what it looks like, but it can be anything that people can see or sense that helps them know where it comes from and tells it apart from other things they can buy. This means that distinctiveness is not about how something looks, but it is about the trademark function of identifying the origin of goods and distinguishing them from other goods, in the marketplace, which is what the decision reinforces about the principle of distinctiveness of trademarks.
SIGNIFICANCE AND CONCLUSION
The rose-scented tyre is now in a procedure of registration as a trademark in India, which is a big deal. This shows that the Trade Marks Act of 1999 is flexible enough to include trademarks, as long as they meet the necessary requirements. The decision is fair because it helps new ideas happen and also makes sure the law is clear. People are talking about this trademark, but what is really important is that it helps us understand the law better. The rose-scented tyre trademark is an example of how India is moving forward with trademark law, and it is good that the rose-scented tyre trademark is getting attention. By grounding its reasoning in statutory interpretation and consumer perception, the Trade Marks Registry has established a cautious yet forward-looking precedent for future olfactory trademark applications. This development is likely to influence the trajectory of sensory branding in India and reflects the law’s capacity to evolve in response to changing commercial realities.[12]
Author(s) Name: Deepti Agrawal (Kanoria School of Law for Women, Jaipur)
References:
[1] Trade Marks Registry, Application No 5781410, Sumitomo Rubber Industries Ltd (Class 12) (order granting registration of ‘Floral Fragrance/Smell Reminiscent of Roses as Applied to Tyres’)
[2] Trade Marks Act 1999.
[3] Trade Marks Act, 1999, § 9(1)(a).
[4] Trade Marks Act, 1999, § 2(1)(zb).
[5] Order of the Trade Marks Registry appointing amicus curiae in smell trademark application (Sumitomo Rubber Industries Ltd.).
[6] Trade Marks Act, 1999, § 2(1)(zb).
[7] Trade Marks Act, 1999, § 2(1)(m).
[8] Decision of the Trade Marks Registry in the rose-scented tyre application.
[9] Trade Marks Act, 1999, § 2(1)(zb).
[10] Trade Marks Act, 1999
[11] Trade Marks Act, 1999, § 9(1)(a).
[12] Trade Marks Registry, Sumitomo Rubber Industries Ltd (Application No 5781410) (grant of India’s first olfactory trademark).
