Can You Really Own a Smell? India's First Olfactory Trade Mark and What It Means

On 21 November 2025, the Indian Trade Marks Registry did something it had never done before. It accepted a smell as a trade mark a "floral fragrance reminiscent of roses as applied to tyres," filed by Japanese manufacturer Sumitomo Rubber Industries. The decision broke decades of global deadlock between science and law, and it raises a question that sounds absurd until you think about it carefully: can you really own a scent?

Why a rose scented tyre works and a rose-scented perfume would not !

The reason Sumitomo succeeded is precisely because a rose-scented tyre is, on its face, bizarre. Trade mark law requires that a mark be distinctive it must identify the source of goods, not describe the goods themselves. A perfume company could never trade mark the smell of roses for perfume, because the scent is the product. That would be like granting a permanent monopoly over a product feature.

But roses have nothing to do with tyres. The fragrance does not improve grip, durability, or any functional attribute. It is entirely arbitrary in relation to the goods and arbitrariness is exactly what makes it registrable. As the Controller General put it, a consumer encountering the smell of roses in place of the usual rubber odour would associate it with Sumitomo as the source of origin. The scent functions as a brand identifier, not a product feature.

This distinction between arbitrary and functional marks is not new. What is new is how Sumitomo proved it.

The science that made it possible

The historic difficulty with smell marks has always been representation. You can draw a logo. You can record a sound. But how do you capture a smell on a trade mark register in a way that is clear, precise, self-contained, and objective?

The EU's answer, since the Sieckmann decision in 2002, has been that you essentially cannot. The EUIPO's current guidelines consider olfactory marks unacceptable, on the basis that "generally available technology" does not allow them to meet the representation standard. The result is that smell marks remain impossible to register in the European Union.

Sumitomo's team took a different approach. Researchers at the Indian Institute of Information Technology, Allahabad, developed a seven-dimensional olfactory vector model a scientific graph capturing the molecular fingerprint of the rose fragrance through gas chromatography and mass spectrometry. The Registry accepted this as a valid graphical representation: clear, precise, objective, durable, and reproducible. They effectively digitised the subjective human experience of scent into verifiable data.

This is the real innovation buried in the annexures of the order. The legal arguments about distinctiveness and non-functionality are important, but the seven-dimensional vector is what unlocked the door.

Three jurisdictions, three positions

The global picture on smell marks is strikingly uneven. The United States registered its first scent mark in 1990 the smell of plumeria blossoms on sewing thread but requires proof of acquired distinctiveness through use, making registrations extremely rare. The UK accepted Sumitomo's rose-tyre mark back in 1994, making it arguably the world's first registered smell mark. The EU, as noted, still considers them unregistrable.

And now India has arrived three decades after the first scent registrations elsewhere, but with the most scientifically rigorous representation standard of any jurisdiction. The irony is that India's late entry may have produced the strongest model for how to do it.

The unanswered questions

The Sumitomo decision is a landmark, but it leaves significant questions open. The mark was filed on a "proposed to be used" basis meaning there is no evidence that rose-scented tyres have ever been sold, marketed, or encountered by a single Indian consumer. Distinctiveness was assessed in the abstract, not through marketplace evidence. How will the Registry handle enforcement if a competitor launches a similarly scented tyre? How do you prove infringement when the allegedly infringing "mark" is a smell that varies with temperature, age, and individual olfactory perception?

And there is a broader question for practitioners. If the seven-dimensional vector model works for roses on tyres, what other scent-product combinations could follow? Could a law firm trade mark the smell of its lobby? Could a car manufacturer own the scent of a new vehicle interior? The Sumitomo order draws no clear line and the boundaries of olfactory trade mark protection in India are now genuinely open.

Why this matters

This is not just a curiosity. Non-traditional marks sounds, colours, shapes, and now smells represent the frontier of trade mark law, the place where legal frameworks designed for words and logos are being stretched to accommodate the way brands actually work in the modern economy. The Sumitomo decision is India leapfrogging the EU on a question that European law has refused to answer for over twenty years.

For IP practitioners, the message is clear: the law of trade marks is no longer confined to what you can see on a page. The question now is what else it can accommodate and whether the frameworks we have are ready for it.