Smell as Trademark: Legal, Practical and Evidentiary Challenges to Olfactory Mark Registration in India

Introduction

The Trade Mark Registry of India has accepted the application for advertisement of the smell mark "Floral Fragrance/Smell Reminiscent of Roses as Applied to Tyres" under Class 12. This application was initially objected to under Section 9(1)(a) and Section 2(1)(zb) of the Trade Marks Act, 1999, on the grounds of lack of distinctiveness and non-fulfilment of graphical representation requirement. For conventional trademark registration, see our guide on trademark registration in Bangalore. The Registry conducted multiple hearings and concluded that the application satisfied the conditions of graphical representation and distinctiveness, and allowed the application to be accepted for advertisement, which is the statutory step preceding publication and potential opposition.

However, this acceptance raises serious questions regarding the future implications of registering smell marks. Although trademark law globally continues to evolve and tries to accommodate non-conventional trademarks, the registration of smell has consistently posed conceptual, technical, and evidentiary difficulties because, unlike words or sounds, a smell mark is intangible, highly subjective and not capable of being accurately or objectively represented graphically.

In 2008, India recognized the non-conventional mark of sound, but this was only possible because musical notation and audio files provide stable and objective forms of representation. Moreover, the Trade Mark Rule, 2017, now gives explicit guidelines for registration of a sound mark and graphical representation, under Rule 26(5), further facilitating the registration of a sound mark. However, no such framework exists for smell marks. Odors are unstable, highly subjective and significantly influenced by a variety of factors. Unlike trademarks which are visual or auditory, smell marks rely on a consumer's ability to recognize a scent belonging to the brand. To understand the fundamental differences between trademarks and patents, read our article on patent vs trademark differences. This article aims to highlight the major drawbacks and challenges that are likely to arise with the recognition and attempted registration of smell as a trademark.

Recognition of India's First Smell Mark

This order raises serious questions regarding the practical viability of registering smell marks, as several factors were not fully considered by the Registry, thereby creating uncertainty about the future treatment and registrability of olfactory marks in India.

Challenge 1: Subjectivity and Variability of Olfactory Perception

Humans are no doubt triggered by smell, but not all humans have the same perception of smell. Olfactory perception is one of the most subjective of all human senses, as it is shaped by a multitude of factors, such as culture, memory, emotional association, genetics, familiarity, and prior exposure to the smell. Unlike sounds or sights, smells are inherently personal, shaped by both cultural background and biological difference.

Moreover, odor can change or be affected by environmental factors, such as humidity, air quality, and temperature, further increasing its subjectivity. This subjectivity undermines the most basic requirement and function of a trademark, which is enabling consumer recognition through an objective and consistent sign. Trademark law functions on the assumption that consumers perceive the mark in almost the same manner; the inherent variability and subjectivity of olfactory perception significantly weaken the legal viability of the smell mark.

Challenge 2: Proving Distinctiveness

The Registry accepted the applicant's assertion that the scent functions as a distinguishing factor and as a source identifier. However, this acceptance is conceptually flawed, as distinctiveness requires that the mark indicate the source and be perceived in a relatively uniform manner by consumers. But what happens when this very smell is perceived in different ways?

A trademark cannot be registered if it lacks distinctiveness. In the case of smell marks, a scent that is distinctive for one product may not be distinctive for another, further highlighting the inherently subjective nature of olfactory perception. This raises the question of whether trademark law can meaningfully extend protection to a subjective and variably perceived non-traditional mark.

Various studies have shown that individuals form olfactory associations based on personal memories or past exposure to particular scents. To prove distinctiveness, it must be demonstrated that consumers are able to link the smell with specific goods; however, in the case of complex, unfamiliar, or nuanced odors, consumers may be unable to make such an association. Thus, the criterion of distinctiveness, while not impossible, becomes exceedingly difficult to establish in practice for smell marks.

Challenge 3: Graphical Representation and Vector Representation Inadequacy

Although the present case cites the Sieckmann decision, the Registry relies heavily on the vector representation submitted by the Applicant, without fully addressing the inherent limitations of such a model.

Why Vector Representations Fail:

Olfactory marks, which are inherently non-visual, are excluded from registrability not due to any statutory prohibition but because of the absence of a feasible, objective, and universally reliable medium of representation. These issues of subjectivity and imprecision in graphical depiction undermine the core purpose of trademark registration and fail to satisfy the Sieckmann criteria.

Challenge 4: Enforcement and Infringement Issues

Even if a smell mark is registered, proving infringement presents significant challenges. The core purpose of trademark protection is to grant the proprietor exclusive rights over the mark, in this case, a scent or olfactory perception. However, the question arises: how does one establish infringement for a smell mark?

These factors create substantial evidentiary difficulties, raising serious concerns about the enforceability of smell marks in infringement proceedings.

Conclusion: The Practical Improbability of Smell Mark Registration

The main purpose of trademark law is to protect marks that are stable, objective, and consistently perceivable by consumers. Smell marks, by contrast, are inherently subjective and highly variable due to physiological, cultural, and environmental differences. Their distinctiveness cannot be reliably assessed nor graphically represented in a manner that satisfies the criteria laid down in the Sieckmann case.

Even technologically advanced solutions, such as vector representations, cannot produce a universally acceptable graphical depiction of the mark, as they capture only chemical attributes while ignoring real-world factors that shape consumer olfactory perception. Furthermore, the evidentiary burden of proving infringement of a smell mark poses substantial difficulties, as there is no universally accepted olfactory metric or standard against which scents can be compared.

Implications for Businesses and Trademark Strategy