India’s Trade Marks Registry has accepted what could be the country’s first-ever olfactory trade mark: a floral fragrance/smell reminiscent of roses applied to tyres.
The Controller-General of Patents & Trade Marks, Prof. Unnat P. Pandit, has held that this rose-like scent meets the strict statutory requirements under Section 2(1)(zb) of the Trade Marks Act, 1999, especially for distinctiveness and graphical representation.
Initially, the Registry had rejected the application under Sections 9(1)(a) and 2(1)(zb).
Given the novel nature of smell marks, the Registry appointed a Senior Advocate as amicus curiae. He submitted scientific analysis, including a seven-dimensional smell model created by researchers at IIIT Allahabad, to explain how a smell can be graphically represented.
The scientific model maps the rose fragrance onto seven smell dimensions, floral, fruity, woody, nutty, pungent, sweet, and minty, using vector representation.
The Registry found this representation to be clear, precise, self-contained, intelligible, objective, and durable.
The Registry noted that rose fragrance is arbitrary in relation to tyres. Unlike the typical rubber smell, the floral scent acts as a strong, source-identifying signal.
By accepting a rose perfume as a trade mark for tyres, the Indian Trademark Registry has overcome a major barrier in relation to acceptance of different types of trade mark.
FICPI’s view and involvement
FICPI uniquely combines education and advocacy on topics around patents and trade marks, with a focus on developing the professional excellence of its individual members. FICPI Forums, Congress, committees and meetings are opportunities to gather insights from the international IP attorney community on any issue, whether it be practice-related or topics of patent and trade mark law.
Next steps
- Connect with FICPI member IP attorneys in India – search the FICPI member directory
- Consider getting involved with the work of FICPI’s Study & Work Committee or its working groups on areas such as CET 1 trade marks.