India’s Trademark Regime Advances: CGPDTM Issues Landmark Order on Smell

25/11/2025
Introduction
In a landmark development for India’s intellectual property landscape, the Controller General of Patents, Designs and Trade Marks (CGPDTM) have issued a significant order addressing the registrability of smell (olfactory) marks under the Trade Marks Act, 1999.
This decision marks one of the first formal administrative evaluations of scent-based trademarks in India and signals a progressive step toward recognizing non-traditional marks in alignment with international practices.
Background of the Applicant and the Proposed Mark
The Applicant sought registration of a distinctive fragrance as a trademark for its goods. The application included a textual description of the scent, supporting documents, and assertions of distinctiveness.
In reviewing the application, the CGPDTM examined:
  • The clarity of the scent description
  • The Applicant’s claim of distinctiveness
  • Evidence demonstrating use and recognition
  • The scent’s ability to function as a source identifier rather than a mere feature of the goods
This case reflects a broader trend of businesses adopting sensory branding, particularly in industries such as perfumery, cosmetics, wellness, and lifestyle products.
Statutory Framework Referred to in the Order
The CGPDTM relied on key provisions of the Trade Marks Act, 1999 and Trade Marks Rules, 2017, including:
  • Section 2(zb) – Definition of a trademark (must distinguish goods/services)
  • Section 7 – Requirement of graphical representation
  • Section 9(1)(a) – Inherent distinctiveness
  • Section 9(1)(b) & (c) – Descriptive or functional characteristics
  • Section 9(2) – Public interest considerations
  • Section 18(1) – Claim of proprietorship
  • Rule 26(1) – Graphical representation standards
The order also discussed the challenges inherent to representing smells in a clear, precise, objective, and durable manner, which remains central to trademark acceptance.
Submissions of the Amicus Curiae
The proceeding included detailed submissions from the appointed Amicus Curiae, who assisted the CGPDTM by offering an objective legal and technical perspective. Key submissions included:
  • Analysis of global standards for scent marks
  • Reference to the Sieckmann criteria (clarity, precision, objectivity, accessibility, intelligibility, durability, and specificity)
  • Recognition of challenges in representing olfactory elements through traditional trademark systems
  • Discussion of international frameworks such as EUIPO rules, USPTO practices, and WIPO guidance
  • Emphasis that a smell must function as a badge of trade origin, not merely as a product attribute
These inputs played a significant role in contextualizing the matter within international jurisprudence.
Case Laws Discussed in the Order
The CGPDTM examined several global precedents on scent marks, including:
  • Sieckmann v. Deutsches Patent- und Markenamt (C-273/00) – The leading case defining representation standards for non-traditional trademarks
  • Shield Mark BV v. Joost Kist (C-283/01) – On representation of unconventional marks
  • Relevant USPTO decisions involving rare registration of scent marks
  • Cases involving chemical description and representation in European and American jurisdictions
These cases highlight the stringent requirements for acceptability of smell marks worldwide and underscore the CGPDTM’s balanced approach in interpreting Indian law.
Key Observations by the CGPDTM
Smell Marks Are Not Prohibited in India
Indian law does not exclude olfactory marks. They may be registrable if they meet statutory thresholds.
High Standards of Graphical Representation
A mere textual description is insufficient. Representation must satisfy the principles established globally and interpreted under Section 7 and Rule 26.
Distinctiveness Must Be Demonstrated
Applicants must prove either:
  • Inherent distinctiveness, or
  • Acquired distinctiveness through use and consumer association.
Evidence Requirements Are Substantial
Applicants must furnish clear and compelling evidence that the scent is recognized by the public as identifying trade origin.
Consumer Function Over Decorative or Functional Use
The scent must not be merely pleasant, functional, or descriptive of the product—its purpose must be brand identification.
Implications for Brand Owners
This landmark decision provides the first structured guidance for pursuing smell marks in India. Companies may now evaluate whether their products’ signature scents—often central to brand identity—are eligible for protection.
Industries likely to benefit include:
  • Perfumery and fragrance
  • Cosmetics and skincare
  • Wellness and aromatherapy
  • Food and beverage products
  • Household and lifestyle brands
Brand owners must, however, be prepared to meet stringent evidentiary and representation criteria.
Strategic Considerations for Filing Smell Marks
Before initiating filings, businesses should:
  • Assess whether their scent is unique, distinctive, and non-functional
  • Prepare detailed scent formulations and representation documentation
  • Collect consumer perception data
  • Document marketing efforts emphasizing the scent as a brand identifier
  • Prepare a trademark strategy aligned with global best practices
Conclusion
The CGPDTM’s order represents a significant progression in India’s intellectual property jurisprudence. While smell marks remain difficult to secure, they are now expressly acknowledged as potentially registrable trademarks, provided applicants meet high standards of representation and distinctiveness.
This development invites businesses to explore innovative avenues of brand protection, aligning India more closely with evolving global trademark trends.
 


Mahima
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