Trademarks have traditionally been associated with names, logos, and visual identifiers. Over time, this scope has expanded to include non-conventional marks—like sound, color, shape, and potentially even smell. Among these, smell marks remain a rarity and a legal curiosity, especially in jurisdictions like India.

This article explores the concept, history, and legal challenges of protecting scents as trademarks—and why smell remains one of the most elusive sensory marks under trademark law.

🌸 What is a Smell Trademark?

A smell trademark refers to a distinctive scent used to identify and distinguish the goods or services of one business from another. While sound marks like the iconic Nokia ringtone have seen widespread acceptance, smell marks are far less common—and far more difficult to register.

🕰️ Historical Milestones in Smell Mark Registration

  • UK: One of the earliest examples of smell trademark registration came from Sumitomo Rubber, which secured rights for a floral fragrance applied to vehicle tires.
  • USA: In 1990, a company registered the scent of Plumeria blossoms as a trademark for sewing thread and embroidery yarn—making it one of the first olfactory marks approved by the USPTO.

Despite these pioneering steps, the number of smell mark registrations globally remains limited.

⚖️ Challenges in Recognizing Smell Marks

1. Subjectivity of Smell
Unlike logos or sounds, which can be objectively seen or heard, smell is a deeply personal and subjective sense. What one person finds pleasant and distinctive, another may not even recognize. This subjectivity makes legal validation difficult.

2. Functional Nature of Scents
If the scent of a product is essential to its function—such as the smell of perfume, food, or cleaning products—it’s often considered functional and therefore not eligible for trademark protection under the “functionality doctrine.”

3. Lack of Graphical Representation
Trademark systems typically require a clear graphical representation. While a musical score or color code can meet this requirement, there is no standardized way to represent a smell visually. This has been one of the major roadblocks for smell mark registration.

🔍 Examples of Smell Trademarks

Though rare, a few successful registrations include:

  • Bubble gum scent used in lubricants for engines
  • Floral or fruity scents added to non-consumable goods to create brand distinction

These instances show that while rare, smell marks have practical branding potential even in technical or industrial sectors.

📚 Legal and Policy Considerations in India

In India, smell marks are not explicitly addressed under the Trade Marks Act, 1999 or in the Trade Marks Manual. Since graphical representation is a mandatory requirement, there is currently no formal mechanism to accept or examine smell-based applications.

Moreover, there is no precedent of a successful smell mark registration in India, making this an uncharted area of law requiring serious regulatory and technological advancement.

🧩 Looking Ahead

For smell marks to gain recognition in India and globally, several developments are needed:

  • Creation of standardized methods to capture and represent smells (possibly through chemical formulas or AI-generated scent profiles)
  • Legal reforms to accommodate sensory marks beyond visual and auditory formats
  • Broader international consensus on how to evaluate and enforce non-traditional trademarks

Conclusion

Smell trademarks sit at the intersection of innovation, marketing, and legal theory. While early cases in the UK and US showed promise, the challenges of subjectivity, representation, and legal structure continue to limit their widespread adoption.

In India, the path to recognition of smell as a valid trademark remains blocked by procedural gaps and policy inertia. However, with rising interest in sensory branding, it may only be a matter of time before smell joins the list of protectable brand identifiers.

About the Author

Bramara Maddipati
Bramara Maddipati is a registered Trademark Attorney and Director at Eeva IP & IT Services Pvt. Ltd. With over 16 years of experience in intellectual property law, she specializes in trademark prosecution and brand strategy. Bramara advises clients on securing and managing domestic and international trademarks, helping businesses protect their brand identity in a competitive marketplace.