.png)
RECENT TRENDS IN TRADEMARK FILING IN INDIA: EMERGENCE OF NON-CONVENTIONAL TRADEMARKS
- CIIPR RGNUL
- 7 days ago
- 7 min read
ABSTRACT
India’s trademark regime is witnessing a paradigm shift with the gradual rise of non-conventional trademarks, driven by changing branding strategies and increased sensory-based consumer engagement. While the Trademarks Act, 1999 provides a broad framework that accommodates unconventional marks, challenges around graphical representation and distinctiveness have historically limited registrations. Recent developments, including India’s first acceptance of a smell trademark for rose-scented tyres by Sumitomo Rubber Industries, mark a significant breakthrough supported by scientific olfactory mapping. This paper analyses statutory provisions, judicial trends, and practical hurdles, and evaluates the emerging scope of sound, colour, shape, motion, and olfactory marks within India’s evolving IPR landscape.
Keywords: Non-Conventional Trademarks, Sensory Branding, Olfactory Marks, Trademark Law India.
INTRODUCTION
India’s intellectual property rights (IPR) landscape has undergone a remarkable shift over the last decade. With the explosion of digital commerce, heightened global competition, and the rise of experiential branding, the traditional boundaries of trademark protection have steadily expanded. Words, names, devices, and labels are no longer the sole carriers of brand identity. Modern branding increasingly relies on sensory experiences- visual, auditory, olfactory, to create emotional recall and distinguish products in a saturated market.
This evolution is fully reflected in India’s emerging jurisprudence on non-conventional trademarks. India has gradually recognized colour marks, shape marks, sound marks, motion marks, hologram marks, and, in November 2025, the Registry took a historic leap by accepting its first-ever smell trademark for advertisement. The acceptance of the rose-scented tyre trademark filed by Sumitomo Rubber Industries marks a watershed moment, not merely because it protects an olfactory brand element, but because it introduces a scientifically validated model for representing scents.[3]
STATUTORY FRAMEWORK FOR NON-CONVENTIONAL TRADEMARKS IN INDIA
The Trademarks Act, 1999 (“the Act”) forms the backbone of India’s system for the registration and enforcement of both conventional and non-conventional trademarks. Its structure is sufficiently broad and adaptable to accommodate evolving forms of distinctive brand elements.
a) Definition of “Mark” and “Trademark”
Section 2(1)(m) defines a “mark” by using the term “includes”, thereby indicating that the list of acceptable marks is illustrative, not exhaustive. This formulation intentionally leaves room for recognition of new and unconventional identifiers.
Section 2(1)(zb) defines a “trademark” as a mark that is:
capable of being represented graphically, and
capable of distinguishing the goods or services of one person from another.
Both limbs must be satisfied regardless of whether the mark is conventional or non-traditional.
b) Graphical Representation Requirement
The graphical representation requirement has historically been the most challenging hurdle for non-conventional marks. Rule 2(1)(k) of the Trademarks Rules, 2017 defines “graphical representation” as representation of the trademark “in paper form,” including digitised form.
Key representational challenges include:
Sound marks require musical notation to avoid subjectivity.
Motion marks must be depicted frame-by-frame.
Hologram marks require multiple-angle static images.
Smell marks face the greatest difficulty because smells cannot be traditionally captured visually in a manner that is clear, precise, objective, durable, and accessible, the well-known Siekmann[4] criteria.
It is precisely this representational gap that the Sumitomo decision bridges through the innovative use of a seven-dimensional olfactory vector.
c) Distinctiveness Requirement
Section 9(1)(a) mandates that marks lacking inherent distinctiveness cannot be registered.
For non-conventional marks, distinctiveness is examined through:
whether the sensory element is non-functional.
whether consumers perceive it as a source identifier rather than a mere product feature.
whether the mark is arbitrary or unusual in relation to the goods.
For example, the scent of a rose applied to tyres is inherently distinctive because consumers do not expect tyres to emit floral fragrances.
GROWTH OF NON-CONVENTIONAL TRADEMARKS IN INDIA
Over the years, India has steadily broadened its recognition of non-conventional marks, although registration numbers remain relatively low due to stringent evidentiary standards.[5]
a) Colour Marks
India accepts colour combinations and, in appropriate cases, even single colours.
Examples include:
Red Bull’s blue-silver colour for beverages.[6]
Victorinox’s single-colour registration for tools.[7]
· Christian Louboutin’s red sole[8], which the Delhi High Court held distinctive for non-red shoes. [9]
Courts examine whether the colour is functional and whether it has acquired consumer recognition.
b) Shape Marks
Shape marks have gained acceptance, provided the shape is not exclusively functional or necessary to achieve a technical result.
Illustrative registrations include:
the Coca-Cola bottle contour.[10]
the Toblerone triangular prism.[11]
· the store layout of the famous beauty care brand Mary Cohr[12]
These examples demonstrate that product configuration and even building layouts can function as trademarks.
c) Motion Marks
Motion marks, though rare, are admissible where the movement can be depicted through sequential frames.Toshiba’s animated logo is a well-known instance of such protection.[13]
d) Sound Marks
India recognizes sound marks when represented through musical notations. According to Rule 26 of the Trade Mark Rules, 2017, a sound track can be registered as trade mark by submitting a sound clip along with the musical notations, with the length of the sound clip not exceeding 30 seconds. The submission of musical notations should also fulfill the criteria of graphical representation. Further, the draft Manual of Trade Marks also provides that “A trade mark may consist of a sound and represented graphically by a series of musical notes with or without words. Applications for sound marks must clearly state that they are sound marks. Otherwise the application will be examined as if it were a word and/or device mark (e.g. in the case of musical notation)”
Some of the registered sound marks in India are:
Sound Trade Mark | Application Number | Graphical Representation | Applicant | Application Date |
TARZAN YELL (sound mark with spectrogram) | 1748778 | M/S. Edgar Rice Burroughs Inc. | October 29, 2008 | |
ICICI Bank (corporate jingle music) | 1807772 | ICICI Bank Limited | April 16, 2009 | |
– | 1904243 | Britannia Industries Limited | January 01, 2010 | |
WEB EX SOUND MARK (logo) | 1988652 | Cisco Technology, Inc. | July 02, 2010 |
INDIA’S FIRST SMELL TRADEMARK: A LEGAL AND SCIENTIFIC MILESTONE
The acceptance of India’s first olfactory trademark on November 21, 2025 marks a decisive breakthrough in trademark jurisprudence. Sumitomo Rubber Industries Ltd. filed Application No. 5860303 seeking registration for a “Floral fragrance / smell reminiscent of roses as applied to tyres”, a scent it has infused into its products since 1995.
The rose aroma was specifically introduced to neutralize unpleasant rubber smell and render the tyres more appealing, thereby serving as a deliberate branding tool rather than a functional feature.
a) Applicant’s Submissions
Sumitomo advanced a carefully structured argument relying on statutory interpretation, commercial practice, and scientific innovation.
The applicant emphasized:
Inclusiveness of the definition of “mark”
The Act does not exclude smells from protection and imposes no restriction limiting marks to visual or verbal forms.
Intentional commercial use
Rose scent has been consistently used in tyres for nearly three decades as a source-identifying feature, not as a natural by-product of manufacturing.
Dual representation strategy
A verbal description of the fragrance as reminiscent of roses.
A scientifically designed seven-dimensional olfactory vector created by IIIT Allahabad, mapping volatile organic compounds responsible for the aroma.
Inherent distinctiveness
A floral fragrance has no natural connection to tyres and therefore functions as an inherently distinctive sign.
International precedents
The applicant relied on the UK registration for the same scent, and global examples from the EU, US, and Australia recognising smell marks.
b) Role of the Amicus Curiae
To ensure a balanced and jurisprudentially sound decision, the CGPDTM appointed amicus curiae.
The amicus focused on:
whether the rose scent possessed the ability to distinguish Sumitomo’s goods.
whether the scent could be represented graphically in compliance with statutory requirements.
global jurisprudence recognising non-conventional marks.
scientific reliability of the seven-dimensional olfactory vector.
He confirmed that the scientific model met established legal standards of clarity, precision, objectivity, and durability.
c) Findings of the CGPDTM
The CGPDTM conducted a reasoned analysis and reached the following conclusions:
1. Statutory Inclusion
The term “includes” in Section 2(1)(m) permits recognition of marks such as smells, provided statutory criteria are satisfied. The Act does not restrict trademarks to visual expressions.
2. Graphical Representation
The seven-dimensional olfactory vector was held to be an adequate and scientifically valid method of representing the scent on the Register. It satisfied the Siekmann criteria more effectively than any method previously employed globally.
3. Distinctiveness
The rose scent was inherently distinctive in the context of tyres, since consumers do not expect floral aromas in automotive products.
4. Acceptance for Advertisement
The application was ordered to be advertised as an Olfactory Trademark, making it India’s first smell mark. This constituted a historic shift in Indian trademark practice. [14]
IMPLICATIONS FOR INDIAN IPR JURISPRUDENCE
The Sumitomo decision carries profound implications for the future of trademark law in India.
a) Expansion of Sensory Branding
Businesses now have an express pathway to protect sensory cues such as smells, textures, haptic vibrations, and combined sensory experiences. This will encourage more sophisticated branding and product differentiation strategies.
b) Emergence of Scientific Standards
India is now increasingly relying on a scientifically quantifiable method for representing Intellectual property. This has the potential to influence global IP offices and harmonise cross-border practices.
c) Advanced Enforcement Mechanisms
Future trademark infringement cases involving sensory marks may necessitate expert chemical testimony, olfactory compound analysis, and empirical scent comparison models.
d) Enhanced International Standing
India’s leadership in adopting a science-backed method for scent representation may position it as a benchmark jurisdiction in non-conventional trademark protection.
CONCLUSION
The landscape of intellectual property rights in India is undergoing a structural transformation driven by evolving commercial practices and judicial openness to innovation. The recognition of colour, shape, sound, and motion, marks over the past years laid the foundation for expanded sensory protection. The acceptance of India’s first olfactory trademark not only completes this evolutionary arc but also situates India at the forefront of global trademark jurisprudence.
By embracing scientific rigor through the seven-dimensional olfactory vector, India has demonstrated that its legal framework is capable of adapting to complex sensory branding requirements. As businesses explore increasingly immersive modes of consumer engagement, the importance of non-conventional trademarks will continue to grow. India’s approach now offers a model for other jurisdictions seeking to modernize their trademark registries in line with contemporary branding and technological realities.
[1] Shilpi Saurav Sharan is Managing Associate at S.S. Rana & Co.
[2] Huda Jafri is Associate Advocate at S.S. Rana & Co.
[3] India’s First Smell Trademark: CGPDTM Accepts Rose Fragrance for Tyres, S.S. Rana & Co., https://ssrana.in/articles/indias-first-smell-trademark-cgpdtm-accepts-rose-fragrance-for-tires/ (last visited Dec. 9, 2025).
[4] Ralf Sieckmann v. Deutsches Patent and Markenamt, Case C-273/00, 12 December 2002, European Court of Justice.
[5] Non-Conventional Trademarks in India, S.S. Rana & Co., https://ssrana.in/articles/non-conventional-trade-marks/ (last visited Dec. 9, 2025).
[6] Application No. 5037338.
[7] Application No. 1394234.
[8] Application No. 1922048.
[9] Christian Louboutin Sas v. Mr. Pawan Kumar & Ors, 12 Dec 2017.
[10] Application No. 1414264.
[11] Application No. 1279340.
[12] Application No. 4073262.
[13] Application No. 4093005.
[14] India’s First Smell Trademark: CGPDTM Accepts Rose Fragrance for Tyres, S.S. Rana & Co., https://ssrana.in/articles/indias-first-smell-trademark-cgpdtm-accepts-rose-fragrance-for-tires/ (last visited Dec. 9, 2025).
Comments