Kashish Khanna*
Introduction
In November 2025, Sumitomo Rubber Industries, a Japanese business, submitted an application to India for a fragrance that was described as a floral fragrance. The action represents a significant change in how non-traditional marks are handled by Indian trademark law because the trademark was granted successfully. Although the Indian Trademarks Act does not expressly exclude the use of smell marks in India and their protection, it becomes important to evaluate the case on the aspects of whether such a grant broadens the trademark and intellectual property rights jurisprudence in India or further complicates it. The blog will examine all such aspects.
Understanding Trademark
A trademark can be any term, sign, symbol, or even image applied to a business, product, or service to set it apart from rivals. For instance, a firm name, product, logo, or brand. Categories of a trademark are broadly divided into conventional (device marks, word marks) and non-conventional marks (sound, smell, colour). A trademark allows customers to recognise, buy, and enjoy goods and services based on their unique qualities. Although it is not expressly required by law, it is preferable to register trademarks since trademarks are significant company assets and thus the company must protect them. Unregistered trademarks only have limited protection.
After registration, appropriate legal action can be taken to prevent another company from using the same or a deceptively similar mark. In addition to preventing reputational damage from counterfeit goods, a trademarked name identifies all goods and services as belonging to the owner and no one else. A trademark has a ten-year validity period that can be extended indefinitely by renewal. Court orders are used to enforce trademark rights, which are private rights.
For the process of registration, filing of an application is carried out by submitting the prescribed form for the registration of a trademark. One can file a single application for multiple classes in trademark, which is followed by examination of the application by the registrar. Once accepted, the application will be advertised in the trademark journal. Under Section 21 of the Trade Marks Act, 1999, read with Rule 42 of the Trademark Rules, 2017, if no opposition is received within 4 months, a certificate of registration is granted.
Understanding the Sumitomo Rubber Tyres Case
The applicant claimed that the mark represented a floral fragrance (infused into tyres), used by them under a marketing technique. Due to constant innovations, R&D, and publicising around the world, the rose scent has developed an identity as the tyre brand of the applicant. It has received a lot of recognition and is well-reputed in the market. Provisions of the Trade Marks Act, 1999 were initially employed to oppose the application due to lack of distinctiveness and a graphical representation of the mark.
However, the application was finally accepted by the Controller General of Patents, Designs and Trade Marks on 21st November, who stated that it fulfils the requirements for registration of the trademark under the Trade Marks Act, 1999.
Both conditions, as stated under Section 2(1)(zb), have been taken into consideration by the registrar while coming to this decision: (a) whether the mark, which has a smell of rose flower, can be represented graphically or not, and (b) whether the mark has distinctiveness so that the tyres of the applicant company can be distinguished from other tyres. The registrar has emphasised that trademark law is made to help the trade in any way possible and not in any way hinder it. It does not confuse the customers nor destroy the goodwill of the company in its trademarks.
The Registry has discovered that this specific rose fragrance trademark is truly arbitrary and distinct in nature since there is no relationship at all between the two entities, i.e., roses and tyres. As soon as a tyre starts emitting rose fragrance in place of the usual rubber fragrance, the distinctive link with the business becomes evident.
If someone were to come across it on a road or close to a car, they would immediately recognise the smell.
The Controller General has instructed the Registry to advertise the trademark as an “olfactory mark” along with the representation and description provided by Sumimoto.
Analysis: Does the consumer smell the Tyre?
The concept of “average intelligence and imperfect recollection” in Indian trademark law is derived from a particular lineage, namely Amritdhara Pharmacy v. Satya Deo (1963 AIR 449) and later Cadila Health Care v. Cadila Pharmaceuticals (AIR 2001 SUPREME COURT 1952). It is a comparison test. A person of ordinary intelligence is far less likely to consistently register, remember, and connect a transitory roadside smell impression to a particular tyre brand if they have faulty memory, even when comparing two marks side by side. Should the trademark authority check the relevance of a particular trademark? And why does this become important? The Registry’s own argument becomes weaker through this reverse application of the standard.
For a consumer standing near a road, detecting a floral fragrance in the rubber smell of a passing tyre, and associating it with Sumitomo is the kind of perception that a man of average intelligence and imperfect recollection would not reliably make. A tyre is the external, road-contact component of a vehicle. The consumer who purchases such a tyre does not sit next to it, breathe in its fragrance, or experience it as a sensory aspect of their driving experience. The customers of the company experience the vehicle through its interior space mostly.
Considering this aspect, the question that comes to mind is one that has not been adequately dealt with by trademark laws: Should a link between the smell mark and the perception of its user have to be established before registering the mark?
Arguments, on the other hand, involve the stance that it seems counterintuitive to infuse tyres with the aroma of roses because rubber and red petals don’t naturally go together. However, once the fragrance is officially acknowledged, it might serve as a powerful source identifier for this very reason. A product’s aroma is a functional feature that cannot be protected if it is necessary for its usage or quality, as in the case of cheese or tea. But tyres with a rose scent? In this case, the aroma is just used to identify the brand, which makes it so distinct that it is worthy enough to be remembered and associated with the brand.
Functionality of the Aroma: Enhancing Consumer Experience or a Mere Source Identifier?
In the case at hand, the scent acted as a source identifier, the reasoning was accepted, and the trademark was thereafter granted. But what if a scent is added to a product to improve the overall experience of a consumer and not as a brand identifier, should the trademark still be granted? According to the definition of a trademark under Indian jurisprudence, it should be a mark that aids in distinguishing one’s business from others. If the scent is purely experiential, it acts as a decorative feature but does not lead the consumer to distinguish the brand or identify the commercial source of the product.
In the case of Knitpro International v. Examiner of Trademarks, the Delhi HC held that a shape must not be any generic shape and must be some feature that points towards or acts as a source identifier for the product to be capable of being registered under the trademark law. Therefore, to obtain a trademark, one must show that the decorative feature has acquired distinctiveness and secondary meaning in the market, and the presence of the feature refers directly to the source/brand. The Knitpro judgement cited references to certain international cases, discussed in the foregoing paragraph.
Understanding through Global Examples
In the matter of Wal-Mart Stores, Inc. vs. Samara Brothers, U.S. Supreme Court (529 U.S. 205, 120 S.Ct. 1339), the issue under consideration before the Court was the infringement of an unregistered design of a product. The Court held that for the purpose of securing the protection of exclusivity in the design of the product, it is necessary for the plaintiff to prove that the design has acquired secondary meaning in the economy. If a product serves a multiplicity of purposes in addition to/rather than the identification of the source of the product, then it defeats the requirement of distinctiveness and also injures the interests of other customers.
Another case, Société des Produits Nestlé SA (Nestlé) v. Cadbury UK Ltd. (2017 EWCCA Civ 358), expanded on the same. UK Court of Appeal laid down three guidelines with regard to the distinctiveness of shape trademarks, stating that consumers are not conditioned to draw any inferences regarding the origin of the product on the basis of its shape alone without a word or graphic element, thus making the task of establishing the distinctiveness of shape trademarks far more challenging than other types of trademarks.
In the same way, consumers do not consider shape to be an indication of source in the absence of a name or logo accompanying the product; consumers might also not consider scent to be an indication of source/brand as well.
Challenges Ahead
Although this judgment is a bold step towards making the IP law more advanced, there are certain matters that will appear in the future. The use of smell marks could mean that the monopoly will be extended beyond its proper limit, and it would become quite problematic when it is used in certain sectors, for example, pharmaceuticals.
The non-visual passing off will become a possibility. Cases where companies use lawsuits against each other based on the similarity in smells despite logistical differences will become quite common. This interpretation will create further complications as well as confusion with respect to the same. The issue as to whether any slightly different smell created by the rose variant is an infringement or a new smell remains unanswered. Therefore, these should be addressed in detail.
Suggestions and Conclusion
Nonetheless, there is no doubt that the Sumitomo case deserves to be the focus of attention. First of all, this is the case where the Indian trademark law recognises the presence of the brand in the smell. But this brilliant thought leads to lots of legal questions for the future. Thus, the Registry needs to provide precise instructions regarding the acceptability of such a trademark in view of the problems raised above and according to the laws of India. The problems that emerged in this particular case cannot be viewed as questions of validity or invalidity of the order. They can only serve as a way to see what can be done.
* The author is a student pursuing a Post-Graduate Diploma in Business and Law for Entrepreneurs and Start-ups at National Law University, Delhi. The author may be contacted at kashishkhanna4442@gmail.com.
This blog reflects the personal views of the author and does not necessarily represent the views of The Policy Chronicle.