Trademarking the Smell of Success: Can Non-Traditional Marks Survive Indian Law?

Sneha Singh & Kashika Mittal are law students with a keen interest in intellectual property and trademark law, particularly in the context of modern commerce.

Introduction

In an increasingly diversifying brandscape, firms increasingly want to own not merely visuals or logos, but experiences. Take the case of a high-end perfume brand that tries to trademark its signature scent as seen in the case of  In re Clarke, 17 USPQ2d 1238 (TTAB 1990, The United States recognized a floral scent as a trademark, signaling a notable shift from the traditional requirement of visual representation. Futuristic as it sounds, this trend, grounded in the larger category of non-traditional trademarks (NTMs), is already a legal reality in some jurisdictions. NTMs encompass identifiers like scents, sounds, tastes, textures, and even holograms that move beyond the word-image dyad of traditional trademarks.

Despite India's membership in the TRIPS Agreement and the express permission to register marks that can be graphically represented, India's legal framework is still based on a traditional understanding of what a "mark" is. The focus on visual identifiability and reproducibility has limited legal acceptance of olfactory or other sensory marks. This is problematic because it challenges Indian trademark jurisprudence's flexibility and inclusiveness.

This article critically examines whether NTMs—particularly smell marks—have a sustainable avenue under the Indian trademark law. It examines doctrinal, technological, and procedural obstacles as well as comparative lessons drawn from jurisdictions such as the European Union, United States, and Singapore to suggest a reform roadmap.

Concept and Scope of Non-Traditional Marks 

Non-Traditional Marks (NTMs) pose a challenge to the conventional meaning of trademarks by going beyond visual signs to incorporate sensory aspects such as smell, sound, shape, and motion. For example, the  and India's inclusion of the Yahoo! yodel as a sound mark indicate a paradigm shift in brand identity. However, the fundamental question remains are NTMs effective identifiers at all, or are they merely creative marketing tools? In their finest moments, NTMs give brands an advantage in the struggle for consumers' attention, facilitating greater emotional and sensory involvement. A distinct sound or fragrance can create immediate identification, ingraining itself into consumers' minds more physically than any logo might. Yet, such sensory uniqueness so often stands perilously close to being subjective—what's distinct to one can be blurry to another. In addition, NTMs erase functional and aesthetic distinctions; for instance, is a product's shape unique, or merely ergonomically better?

The law struggles with this uncertainty, trying to weigh protection against public interest. As trademarks shift from signs to experiences, NTMs prompt both admiration and criticism challenging us to rethink whether brand identity is a legal right or an artistic impression.

Indian Legal Framework and Its Limitations 

The Indian legal framework for trademarks is governed by the Trade Marks Act, 1999, which defines a trademark under Section 2(1)(zb) as a mark capable of being represented graphically and capable of distinguishing goods or services of one person from those of others. While this accommodates traditional visual marks, it creates a structural barrier for non-visible identifiers such as smells, which by nature are subjective and difficult to depict in graphical form.

This requirement for graphical representation has become the cornerstone issue in the debate on non-traditional trademarks (NTMs) in India. Specifically, olfactory marks, which are inherently non-visual, are effectively excluded from registrability, not due to a statutory prohibition but because of the lack of a feasible medium of representation and legal precedent. The sensory nature of smell also introduces interpretative inconsistency, which further discourages applications.

A limited exception can be seen in the Indian Trade Marks Registry’s acceptance of Yahoo!’s audio logo as a sound mark, registered in 2008. While it reflects progressive thinking in terms of NTMs, no parallel case has emerged for smell marks, reinforcing the systemic rigidity.

While India has indeed ratified the TRIPS Agreement—which, under Article 15, allows for the registration of “any sign” capable of distinguishing goods or services, including non-visual indicators—its domestic trademark law remains notably rigid. Indian regulations still only recognize marks that can be graphically represented. This restrictive approach reveals a certain unwillingness to fully utilize the flexibility offered by TRIPS, resulting in little practical accommodation for unconventional or sensory trademarks, such as those based on scent. In effect, India’s formal compliance with TRIPS does not translate into genuine openness toward non-traditional marks. 

Philosophical and Functional Challenges of Olfactory Marks

Olfactory marks pose trademark law with a fundamental philosophical and functional challenge. Unlike sounds or sights, smells are inherently personal, molded by cultural history and biological difference. A smell that's reminiscent in one part of the country may go unheard or even disgust in another. This subjectivity defies the very basic trademark purpose: providing consistent, objective consumer identification.

Legally, the functionality doctrine is a barrier. Fragrances tend to serve functional purposes covering odors in cleansers or adding allure to cosmetics. Guarding such aromas runs the risk of conferring monopolies on functional attributes, which the doctrine specifically forbids. This is not a mere technical obstacle; it is an epistemological challenge. Is something so intangible, non-sensory, and functionally ingrained as fragrance ever subject to ownership? And if fragrance doesn't have some determinable, replicable form, does it contain the legal "fixity" required for trademark protection?

Also, there is a more fundamental ethical issue: monopolizing sensory experiences that are by nature shared and intangible. Providing exclusive rights over a smell runs the risk of commodifying perception. As we extend intellectual property into sensory areas, olfactory marks challenge us to reexamine whether law must serve commercial imagination, or guard the commons of human experience from being branded and owned.

Comparative Jurisprudence: Global Approaches 

Jurisdictions across the globe have taken varied approaches to the registrability of non-traditional trademarks (NTMs), particularly scent marks. The European Union has adopted a stringent standard following the landmark  Sieckmann v. Deutsches Patent- und Markenamt, C-273/00, [2002] ECR I-11737 (ECJ) ruling, where the European Court of Justice held that for a scent to qualify as a trademark, its graphical representation must be clear, precise, self-contained, easily accessible, intelligible, durable, and objective. This has effectively made it almost impossible for applicants to register smells in the EU without a consistent, reproducible medium.

In contrast, the United States follows a more liberal framework under the Trademark Act of 1946 (also known as the Lanham Act), where the requirement for graphical representation is absent. In re Clarke, 17 USPQ2d 1238 (TTAB 1990), the US Patent and Trademark Office accepted a floral scent for sewing thread after the applicant demonstrated acquired distinctiveness. This case remains one of the most cited examples of successful olfactory trademark registration.

Australia and New Zealand have experimented with NTMs but remain cautious. Both jurisdictions require that any non-traditional mark be distinguished and represented in a way that allows clarity in the public register. While they acknowledge sensory marks in theory, in practice the bar remains high due to stringent requirements on evidence of consumer association and distinctiveness.

Taken together, these jurisdictions show that there is no simple path to registering scent marks—only a spectrum ranging from cautious acceptance to stringent denial. India, while still nascent in this domain, could craft a balanced approach by learning from these mixed outcomes.

Enforcement and Practical Limitations 

Though scent marks technically extend the trademark frontier, their enforcement is a legal and logistical maze. Demonstrating infringement in the case of aroma is necessarily intangible—how do you arrest and compare a smell in a courtroom without standard olfactory metrics or presentation gear? There is no established way to "fix" an aroma into legal form such as a logo or tune. Without a physical recording, allegations of unauthorized use are reduced to arguments in the eye of the beholder, frequently unassisted by evidence.

In India, the task is also more difficult since there is a weak connection among consumers regarding the association of odors with brands. The economic and cultural environment has not yet made olfaction a sign of origin, and hence the development of consumer confusion—a major component of trademark infringement—is not feasible. Furthermore, sensory brands are a niche premium in an otherwise price-conscious market, undermining the practical significance of olfactory markers.

The absence of technological infrastructure to detect or authenticate the use of odors heightens these issues. Judges and registrars are, thus, faced with abstract charges with no empirical sensory proof. Thus, even if legal recognition is granted to odorous marks, their enforceability in practice comes close to a state of illusion. In effect, the law will recognize that the prevailing reality cannot be managed efficiently—a gap that makes legal protection symbolic rather than substantive.

Policy Considerations and the Way Forward 

Since branding now extends beyond slogans and logos, Indian trademark legislation must keep abreast of embracing non-traditional marks in a systematic and forward-looking fashion. Legislation must keep pace with technological developments, which can aid the identification and retention of smell identifiers such as digital scent technology and chemical coding standards such that representation challenges can be averted.

But critics warn that protection for odors can create overprotection in the instance of naturally occurring odors that can suppress competition and innovation. Moreover, the already crowded trademark register can have difficulty handling the complex evidentiary burdens such registrations would place on it.

India might do well to establish its own distinct legal framework for non-traditional marks, similar to existing regimes for plant varieties or geographical indications, both of which already employ specialized evidentiary and registration requirements. For example, registering a scent mark could entail submitting the precise olfactory chemical composition or perhaps a digital scent file, along with consumer surveys to demonstrate that the scent has acquired distinctiveness in the marketplace. This approach would help prevent excessive monopolization of sensory elements, while still allowing technological advancements to shape methods of identification. In effect, it seeks a balance between robust evidentiary standards and the evolving realities of modern branding.

Conclusion 

India's current trademark law lacks the legal maturity and pragmatic mechanisms to meaningfully incorporate scent marks. Non-traditional marks, particularly olfactory, disrupt traditional tests of distinctiveness, fixity, and functionality. But to dismiss them completely would be too hasty—some NTMs, when truly non-functional and distinctively recognizable, are worth giving legal thought to. The challenge lies in creating nuanced tests that balance public interest with accommodating sensory innovation. India has acknowledged sound trademarks—the Yahoo! yodel, for instance, was its first recognized non-traditional mark. Yet, when it comes to scent-based (olfactory) marks, the Trade Marks Rules, 2017, remain silent. This legislative silence points to a significant gap in the current framework, highlighting the pressing need for both doctrinal clarity and regulatory reform. As Indian IP law evolves, guided by global precedents and technological advancement, it needs to reimagine what makes up a brand identifier. NTMs are not mere legal novelties—they're portents of a future when branding transcends the visual and becomes experiential.