Sensory judgement: A legislative comment on the expansion of the ‘mark’ and the scientific resolution of graphical representation under the Trademark Act, 1999
Introduction
A landmark legal order was passed by CGPDTM (Controller General of Patents, Designs and Trademarks), India, on 21st November, 2025. It grants India’s first-ever smell mark (olfactory trademark). Making a unique application of law to accept a trademark by Sumitomo Rubber Industries Ltd. (Japan). While the UK and the USA jurisdictions have been allowing registration of olfactory trademarks, this was India’s first of its kind, challenging the conventional definition of a mark. Initially, the application was challenged on two grounds: first, the graphical representation section 2 (1)(zb) on how to visually represent an olfactory mark that is clear, precise, and durable in nature; and second, on the distinctiveness, whether a brand can establish its difference in the eyes of an average man from others. In solving these two problems, the role of technology can’t be ignored. To overcome this hurdle of graphical representation, amicus curiae Shree Pravin Anand partnered up with scientists of IIIT Allahabad and prepared a 7D space representing fundamental smells present in the product (floral, fruity, woody, nutty, pungent, sweet, and minty). This technical graph provided a visual representation of the unique smell of tyres more objectively, proving the essentiality of the law and satisfying the criteria that have been laid down in the Trademark Act of 1999, and defined the boundaries of the Indian trademark. When we go through the definition of trademark, it never explicitly mentions smells from the criteria. So, CGPDTM (Controller General of Patents, Designs and Trademarks) have concluded the definition is inclusive in nature, allowing for non-conventional marks.
Background
30 years ago, it would have been nearly impossible to register any mark based on smell, but now the acceptance of Sumitomo’s Trademark Is not only a technological advancement but at the same time a deliberative interpretative shift from a traditional, strict definition to a more inclusive one. Since the definition in section 2(1)( j) of the 1958 Act defined the Mark in a bit restrictive definition, which must include a device, brand, heading, label, ticket name, signature, word, letter, numeral or any combination. The definition used a particular word, which means inclusive in nature and not exhaustive; for this reason, the judiciary consistently interpreted this list. Previously, for the death of any kind of olfactory mark in the old Statute of section 2(2)(a), was very categorically stated that any reference to the use of a mark must be printed or visually represented. This strict statutory language created a kind of straitjacket formula that prevents any kind of non-conventional mark from being registered as a trademark. In the same way, since smell cannot be printed, it could not logically or legally exist as a trademark. In 1999, The liberalization of the Indian Trade Mark was marked as a necessity in the form of a mandate by the World Trade Organisation. Article 15 of the trips mandates that anything capable of distinguishing the goods must be eligible for Registration. Additionally, it gave member states the option to require signs to be visually Perceptible, but it did not force the same. Later in the Trademark Act of 1999, the Indian Legislature expanded the scope of section 21(m), which included the shape of goods, packaging or a combination of colours and replaced visual representation with graphical representation. The change from visual to graphical lets the foundation for the possibility of olfactory trademarks to be registered.
Legal issues
Can smell be considered a Non-Conventional mark under the Indian Trademark Act 1999?
Can scientific Models like vectors, GC-GM, be used to establish the graphical representation mandated by the Trademark Act, 1999?
Legal analysis
Non-conventional marks go beyond visual elements and create various senses to make Impacting impression on consumers. These type of marks creates the consumer experience with the help of emotional response. Such marks differentiate brands in the market and benefit brand recall, playing an integral role in shaping a complete and holistic brand image. Giving legal protection to such a mark is crucial. Indian device Mark can consist of a brand, heading, label, ticket, name, signature, word letter, numbers, shape of goods, packaging, combination of colours or any combination in the given categories. The list is more illustrative in nature rather than being exhaustive, which shows the intent of the parliament to make the definition more flexible. In this case, also the scent of the roses qualifies to be registered as a trademark because of TRIPS article 15(1) and the inclusive nature of the definition, which states that any sign capable of being distinguishable can be registered as a mark. Indian courts have interpreted the definition several times on different occasions. Till now, there have been very few cases that have been registered as non-conventional trademarks in India. Yahoo signature: Three-note yodel. In 2008, the first Sound trademark was registered in India. Although the Trademark Act 1999 enabled a sound mark to be registered as a mark. But before this, Indian authorities were sceptical about acknowledging the registration of sound and fulfilling the growing needs of entities to secure the unique registration of sounds. An analogy can be drawn here that even before 2008, Indian trademark authorities hesitated to trust anything not written on paper example of this would be a digital signature before 2000. The Information Technology Act 2000 forced the system to accept the digital signatures. The same goes for the Non-conventional Marks. Before 2008, the registration of Sound Was not considered and could not be graphically represented. But 2008 open the door for many sounds mark (using Sonogram and Staff Notation) to be registered, but it must be clear, precise and objective representation In the very same way 2025 the registry In his order accepted the olfactory mark and stated that it satisfies all the criteria laid down for the registration under the trademark act 1999 as the mark is clear, self contained, intelligible, objective and It is possible to represent it graphically. Smell generally arises from volatile organic compounds interacting with olfactory receptors, but Indian trademark law demands a graphical depiction ensuring a clear objective, which must be independent of human senses. To prove that smell is independent of human senses and can be graphically represented, the IIIT Allahabad model depicted this complexity into a seven-dimensional space where each dimension gets the intensity score between zero to one based on derivation from Chromatography Mass spectrometry analysis of the compounds, and after that a average is being derived with the help of machine learning for a stable signature and could be printed on the chart. since till now no judicial decisions of any court of India has mentioned the criteria and requirement of graphical representation of the mark to be considered as trademark based on this, an analogy can be drawn that the criteria is present in Section 2(1)(zb) which is also underlined in the para 13 of the order by the CGPDTM (Controller General of patent design and Trademarks). This graphical representation enables the competent authorities and the public to determine whether the precise subject matter of protection and representation meets the criteria in section 2(1)(zb) of the Trademark Act. Although the 7D graph model is not a complete fix for the graphical representation rule in section 2 (1)(zb), the reason is that how non accessible to everyday people. This particular model uses gas chromatography mass Spectrometry, a machine learning method to create a staple smell profile that is clear for officials but not for the common people, especially from the perspective of ordinary consumers. It becomes very difficult to decide if the mark is distinctive under section 9(2), and consumers cannot readily interpret these technical divisions without any kind of explanatory text, which shows the attempt is more on the side of procedural rather than being intelligible.
Conclusion
The CGDPTM’S order in re Sumitomo Rubber Industries Ltd. represents a decisive Epistemological shift in Indian trademark jurisprudence, making it more effective. which transformed the standards of graphical representation from visual and conventional legibility to scientific quantifiability. While the Trademark Act 1999 Legislatively Unassembled the visual straitjacket of the 1958 regime by adopting the more broad Definition of a mark under section 2(1)(m), it is the order that provides the necessary evidential framework to operationalise the intent by giving validation to the IIIT Allahabad’s 7-dimensional space model as a substitute for traditional graphical representation. The registry has successfully reaffirmed the clear and precise mandate of the Sieckmann criteria with the non-visual nature of olfactory marks. Subsequently, India has not only achieved the inclusive mandate of the Trips Article 15 but has arguably surpassed the visual perceptibility Limitation, which is still dominant in other countries’ jurisdiction, establishing that if a mark’s distinctiveness can be mathematically proven through scientific models, it is entitled to statutory protection under section 2(1)(zb).
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Mr Rajnish Kumar is a 4th-year B.A., LL.B. (Hons.) student at Lloyd Law College in Greater Noida
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