Sound Marks & Smell Marks In India




Brands have evolved to gain unique identities through the experiences they provide to their customers. Think about that smell you have only experienced in a particular hotel chain. One would identify a brand with a smell. Trademarks play a crucial role in establishing a brand’s identity and ensuring that consumers can distinguish between products from different sources. Traditionally, trademarks have been visual symbols such as logos, words, and designs. However, with businesses coming up with innovative ways to distinguish their services, the realm of trademarks is evolving to include non-traditional marks like sounds and smells. This article delves into the current status, challenges, and potential developments for sound and smell marks in India, drawing comparisons with prominent jurisdictions around the world.

India’s trademark law is governed by the Trademarks Act, 1999 (Act), which primarily addresses conventional trademarks. India has seen some progress with sound marks with the advent of the Trade Marks Rules, 2017, but smell marks remain largely unexplored. Some of the prominent sound marks registered in India include:

• The Netflix ‘Ta-dum’ sound
• Chitale Bandhu Mithaiwale’s BINGEBAR tune
• The Yahoo Yodel
• Britannia Industries (Four note bell sound)
• Nokia (Guitar notes while turning on the device).

In India, the Act defines a trademark as a mark capable of being represented graphically and capable of distinguishing the goods or services of one person from those of others, and may include the shape of goods, their packaging, and the combination of colours. In order to qualify for a trademark, a mark (a) needs to meet the criteria of graphical representation, i.e., it has to be capable of being graphically represented, and (b) has to be distinctive from other marks. Pertinently, the Trademark Module in India does not provide any appropriate mechanism for the examination of smell mark applications. Though Indian laws do not expressly provide for certain non-conventional trademarks such as smell marks, they do not exclude them either.

In December 2023, Sumitomo Rubber Industries Limited, a vehicle tire manufacturer, applied for an olfactory trademark, i.e., a smell mark, for its floral-scented tires. If granted, this might be the first smell mark in India. It is pertinent to note that Sumitomo had successfully registered a ‘floral fragrance/smell reminiscent of roses as applied to tires’ in the UK in 1996. Sumitomo was also the first to receive legal recognition for a smell mark under UK law, which was after Chanel’s application for a smell mark for its perfume No.5 was rejected. The fact that a smell mark has been registered as a trademark in the UK shows that it is recognized as distinctive and eligible for trademark protection under common law.

A challenge in the fight to get a smell mark registered under law would be the graphical representation of smell marks. While it can be argued that certain smells such as the smell of lemon or freshly cut grass are so natural and well-known that a mention of the same does not require any other graphical representation—as the simple mention of the smell, e.g., smell of lemon, is sufficient for any person of ordinary prudence to perceive what is meant—the argument or justification becomes complex when the attempt is to represent a developed fragrance such as a commercial perfume. In the prominent case of Sieckmann, where a trademark registration was sought for a ‘smell of balsamically fruity with a slight hint of cinnamon,’ the court declined representation of odour through chemical formula, written descriptions, samples, and graphic profile. Challenges faced under EU laws for smell marks are similar to those faced in India, which is the precise representation of a smell mark.

In the United States, the law pertaining to trademarks is governed by the Lanham Act. Similar to Indian law, the American law does not specifically include nor exclude the identification of smell marks as trademarks. For sound marks, the US has precedents and some iconic sound marks registered such as the MGM lion’s roar and NBC chimes.

It is pertinent to note that India had registered sound marks prior to the notification of the Trade Marks Rules, 2017, which paved the way for the same. For smell marks, it is interesting to see the evolution of jurisprudence, but nevertheless, a trademark for smell marks in India is not an inconceivable notion as it has been granted in another jurisdiction which follows common law. The fact that the same party (Sumitomo) is pursuing registration of a smell mark in India is exciting for the cheerleaders and stakeholders of IP laws. Evolution of Indian trademark laws to include sound marks expressly and the grant of a smell mark as a trademark (awaited) would contribute substantially to the fuller development of trademark laws in India. It can also encourage innovation and creativity in branding. Companies can experiment with new ways to differentiate their products, leading to a more dynamic and competitive market. It also aligns with the global trend of recognizing non-traditional trademarks, ensuring that Indian businesses are not at a disadvantage in the international market.

Authors: Lokesh Kansal & Malabika Boruah




Interns and Paralegals.


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