The Romance and Risk of Owning a Smell: Why Trademark Law Must Be Cautious with Olfactory Marks

[Mahak and Nikhil are students at National Law Institute University.]

Trademark law has moved beyond conventional word marks to shapes, colors, sounds, and other non-conventional marks. This expansion comes with new risks as well as new opportunities. It allows investors to safeguard the unique features of their product but raises questions regarding enforcement, clarity, and objectivity. If we compare these non-conventional marks, olfactory trademarks are the most alluring and legally complex. Scents can invoke a brand’s identity, make products attractive, and affect consumer perception, yet they are highly context-dependent and ephemeral.

India recently registered its first olfactory trademark, which is the rose scent applied to tyres by Sumitomo Rubber Industries. This mark has attracted a lot of attention. In the Indian context, however, it raises questions about representation, intelligibility, distinctiveness, and enforceability. The acceptance of a seven-dimensional olfactory vector illustrates an innovative approach to graphical representation but also exposes structural issues in granting proprietary rights over sensory experiences.

This blog explores three interconnected issues, which show that trademark law needs to be cautious when dealing with olfactory marks. The first is whether smell acts as a reliable source identifier. The second is whether olfactory marks can be represented in a precise, clear, and intelligible way. The third is whether it is possible to enforce exclusive rights over fragrances without being arbitrary. The law must withstand the temptation of innovation. A trademark must only be granted in cases where the mark evidences origin or source, allows an intelligible representation, and is capable of enforcement. 

Trademark Law and the Centrality of Source Identification

The main purpose of a trademark is to transmit information. By indicating who stands behind a product or service, trademarks reduce search expenses and chances of confusion. It serves as the doctrinal bedrock of contemporary trademark law. The CJEU clarified in Sabel BV v. Puma AG that the assessment of the mark must be governed by its ability to identify the commercial origin of products or services. It additionally concluded that the likelihood of confusion must be judged by reference to the mark’s role as the badge of origin. The court must determine whether the mark helps the relevant public in identifying the commercial origin of the product.

The above position was reaffirmed in the case of L’Oréal SA v Bellure, where the court acknowledged that trademarks may serve ancillary purposes such as signaling quality, promoting investment, or boosting promotion. Nonetheless, it stressed that identifying the source of origin continues to be the primary purpose of trademarks. Even where the mark serves ancillary functions, enforcement and confusion analysis must focus on identifying the source. The important question must be whether consumers are misled about the origin of the product or services. Thus, the origin test is not replaced by ancillary functions.

These authorities severely restrict easy registrability when applied to olfactory trademarks. Smell often functions as a product attribute, such as a quality cue or a hedonistic boost, rather than as a conspicuous indicator of commercial origin. Olfactory perceptions are shaped by memory and culture and are perceived differently by different customers. If the scent primarily conveys freshness, flavor, or pleasantness, it only serves an ancillary function. A scent does not pass the core trademark test if there is no reliable evidence that it serves as a source identifier in the eyes of the relevant public. 

This explains the greater success of unconventional aural and visual marks such as logos and shapes, as they are more likely to be interpreted and processed by the public as badges of origin. On the other hand, smell is subjective and influenced by culture and memory. This makes scent unreliable for indicating the origin of the goods. A scent that merely makes a product attractive or signals quality does not enjoy strong protection. The applicant must bring strong evidence to prove acquired distinctiveness. Crucially, the scent must identify the source of the product rather than a mere product attribute.

The Graphical Representation Problem is a Symptom, Not the Disease

The main issue with olfactory marks is the problem of graphical representation. This issue is best articulated in Sieckmann v. Deutsches Patent und Markenamt, where the Court of Justice held that any representation of a mark must be clear, precise, self-contained, easily accessible, intelligible, durable, and objective. The court rejected the applicant's method of graphical representation, which included a chemical formula, a written description, and a physical sample. The court held that this proposed method of representation failed to meet the requirements of legal certainty. This principle was further solidified in the case of Shield Mark BV v. Joost Kist.

The formal condition of representation may be addressed by contemporary scientific techniques such as GC-MS chromatograms, olfactory vectors, or multi-dimensional scent profiles. They do not, however, remove the interpretive gap that exists between a technical profile and what customers or competitors truly perceive. In trademark application decision O/024/01, the UK Intellectual Property Office examined an application for the scent or aroma of cinnamon. The applicant relied on an electronic sensory profile. According to the registrar, the proposed representation of the mark would be unintelligible to those inspecting the trademark journal or register of trademarks.  Without additional information regarding the test conditions and equipment used to create the profile, such individuals would be unable to identify the smell. The registration was refused because the sign could not be recognized without external aid. Therefore, the court held that the graphical representation doesn’t adhere to the legal criteria for precision and clarity. 

The same issue was articulated by Kitchin LJ in Glaxo Wellcome UK Ltd and Another v. Sandoz Ltd. The court considered the position of economic operators while reviewing the trademark certificate and held that they would struggle to identify the protected sign. So, the mark lacked clarity, intelligibility, and precision, which the trademark law mandates. It also seemed unlikely that the public would perceive it unambiguously and uniformly. The court emphasized the importance of fairness and how uncertainty about the mark distorts competition. It also gives the trademark holder an unfair competitive advantage, as rivals remain unclear about the boundaries of exclusive rights.

This points to a deeper truth that technical data alone cannot turn smell into a legally intelligible sign. The sign should allow rivals, courts, and customers to recognize the mark and its scope from the register itself. If the marks can only be identified with the help of external test conditions, proprietary equipment, or professional mediation, it fails to provide adequate notice. Thus, the issue is with structure, not merely procedure. It arises from the law’s attempt to stabilize a fleeting sensory experience into a legal and comprehensible form.  

This reasoning can be seen in India’s recent Sumitomo decision. In this, the trademark registry accepted both a written description and a scientific seven-dimensional olfactory vector, developed by a technical institute. This vector was considered adequate to satisfy the graphical representation criteria under Section 2(1)(zb) of the Trade Marks Act 1999. On the surface, this approach seems to follow Sieckmann by replacing subjectivity with scientific precision. Its limitation becomes clear when viewed against rulings like O/024/01 and Glaxo. A graphical representation that can be understood only through specialized tests, proprietary equipment, or experts is intelligible to only a small technical audience. It does not address the customers, rivals, or traders who rely on the register for legal notice. The main issue is not whether science can accurately describe a smell, but whether the representation satisfies the register’s primary notice or source identification function. The graphical representation may comply formally but fail in substance if the identity of the sign cannot be understood without ancillary knowledge or equipment.

Enforcement Fiction: Can Courts Really Smell Infringement?

Enforcement and registration are two different things. Courts have the authority to directly compare images in disputes involving conventional marks and can evaluate similarities using common human perception. Such a direct comparison is not possible with an olfactory mark. Scientific tools such as chemical formulas or seven-dimensional olfactory vectors only describe the chemical analysis of scents. However, they fail to capture human sensory perception. These techniques simply reveal which molecules are present and do not fully reflect how customers perceive an odor in the real world. 

This issue cannot be resolved by relying on human sensory panels. Olfactory perception is highly variable and very context-dependent, it is shaped by factors such as storage, aging, concentration, and surroundings in which the scent is experienced. In a few instances where olfactory marks have been successful, registries and courts demand strong documentary and market-based evidence. Consider the registration of the fragrance of Play-Doh. In this, Hasbro didn't depend entirely on laboratory comparison and sensory testing but on intensive evidentiary records. According to lawyer Catherine M.C. Farrelly, the evidence included long-term exclusive use, consistent marketing, physical specimens, and strong consumer awareness of the scent as a sign of origin. This case illustrates that enforcement of scent marks is challenging and feasible in limited circumstances. 

This position is clearly reflected in the manner in which Indian courts approach non-conventional marks. Injunctions concerning the Zippo lighter’s shape mark and the Christian Louboutin SAS v. Pawan Kumar case show that enforcement becomes easier where the boundaries of the mark can be visibly defined. The courts can assess infringement and determine the scope of protection with certainty. Olfactory marks don't enjoy this structural advantage, as their boundaries are not fixed with the same degree of certainty, even when supported by technical data. 

A right that cannot be enforced predictably leads to arbitrary outcomes and becomes overbroad and ineffective. To avoid this, trademark law requires narrow and intelligible representations.

A Normative Framework for Olfactory Marks in India

There is a need for a balanced framework that avoids both total rejection and blind acceptance of olfactory marks. The main risk is giving exclusive rights to signs whose boundaries are inconsistent, unclear, or unenforceable. Indian trademark law relies on consumer perception and competitive fairness, making it well-equipped to handle this concern. The focus should be on deliberate and limited application rather than growth driven by novelty.

First, olfactory marks should be treated as exceptional and should be granted only when the applicant provides strong evidence to prove that the scent serves as a source identifier in the eyes of the relevant public. The scent shouldn’t only be a product attribute that makes the product more attractive. It prevents the trademark tag from devolving into a reward for sensory novelty alone. 

Second, the registration should not only be accurate in scientific terms but also be intelligible to ordinary users of the register. In the Sumitomo case, the approval of the seven-dimensional olfactory vector should be treated as experimental rather than definitive. Courts should mandate that applicants and competitors be able to ascertain the extent of protection without specialized equipment or expert advice. 

Third, the viability of enforcement ought to function as an ex-ante constraint. If infringement of a trademark cannot be determined without speculative sensory or expert opinion, then the trademark right runs the risk of becoming illusory. Indian courts have shown a bias for enforceable clarity in shape and color marks. In the same way, olfactory marks should be treated. Therefore, restraint would be the right legal choice when enforcement depends on evidentiary enforcement rather than predictable comparison.

Conclusion

The growth of trademark law shows both aspiration and limitation. The unconventional trademarks are now recognized by courts and registries while focusing on clarity, precision, and enforcement. However, olfactory marks, despite their novelty, still face structural and practical challenges. They must act as a source identifier, be intelligibly represented, and be enforceable. Proprietary rights should be granted only when they fulfill these requirements.

India’s first olfactory mark exposes both potential and danger. Scientific methods may meet graphical representation, but they should not replace the primary role of a mark to give notice and ensure stable perception among competitors and consumers. Enforcement remains challenging because olfactory marks require exceptional evidence for protection, which is difficult for the applicants to provide. In this context, caution means adherence to trademark law’s foundational principles rather than resisting innovation.