Introduction
India’s intellectual property landscape is currently experiencing a significant paradigm shift, moving away from the nation’s traditional reliance on textual and visual identifiers toward an immersive, multisensory framework for brand protection. The objectives of the Trademark Act are to safeguard consumers’ rights and prevent potential confusion, while simultaneously protecting manufacturers or owners from unauthorized product duplication. Traditionally, trademark protection has focused primarily on conventional marks such as logos, symbols, images, signs, names, and similar elements. Recently, there has been a surge in creativity and innovation in trademarks, enabling businesses to differentiate their products in the marketplace. Companies are adopting creative strategies by utilizing non-traditional trademarks—such as distinctive sounds, smells, colors, shapes, and other unique features—to promote their individual identities and maintain a competitive edge in the constantly evolving market.
Recent major registrations serve as primary motivators. As the nation’s first olfactory or smell mark, Sumitomo Rubber Industries[1] accepted the rose scent for automobile tyres, while United Breweries Limited secured recognition of the iconic Kingfisher jingle, “Oo La La La Le O”, as a sound mark. Beyond representing significant legal victories for these companies, these developments demonstrate how Indian trademark law has evolved to align with global standards and lead in cutting-edge technical advancements for the visual representation of sensory experiences.
Statutory Framework Under the Trade Marks Act, 1999
According to Section 2(1)(m) of the Trademark Act of 1999[2], a “mark” includes a device, brand, heading, label, ticket, name, signature, word, letter, number, shape of goods, packaging, or any combination of colors. India was compelled to adopt a liberal international trade policy due to the global economic system, which posed challenges for brand recognition through songs, jingles, or stories rather than traditional logos or word marks. Consequently, India made significant changes, leading to the innovative concept of “Unconventional Marks” or “Non-Traditional Marks.”
The concept of unconventional or non-traditional marks was introduced, and the legal definition of a trademark was broadened by the WTO’s TRIPS Agreement to cover “any sign capable of distinguishing the relevant goods or services of one undertaking from those of other undertakings.
In recognition of their importance, the Indian legal system provides protection for non-traditional marks under the Trade Marks Act of 1999. A trademark is defined as any mark that can be physically represented and is used to identify goods and services, as stated in Section 2(1)(zb) of the Act[3]. Types of non-traditional marks include sound marks, smell marks, colour marks, shape marks, hologram marks, and moving image marks.
Graphical representation means that a mark must be visually depicted in a form that is clear, precise, self-contained, accessible, understandable, durable, and impartial. This standard has evolved globally through jurisprudence, particularly in Europe. Although graphical representation is still required in India, it must meet these clarity standards.
For sound marks, this requirement is satisfied through:
– Musical Notation
– Audio File Submission Under the Trade Marks Rules, 2017
For scent marks, a simple description such as “smell of roses” is usually insufficient unless supported by objective evidence.
Section 9(1)(a) of the Trade Marks Act of 1999[4] states that marks lacking distinctiveness are ineligible for registration. Distinctiveness is not merely a decorative attribute; the mark must serve as an indicator of origin. If consumers cannot immediately identify the source of the goods or services based on the mark’s sound or smell, the mark fails to meet this requirement.
Rule 26(5) of the Trade Mark Rules, 2017[5], states that a sound trademark application must be filed in MP3 format, with a maximum duration of 30 seconds. The sound must be recorded using a device that allows for easy and audible replay, and the application must include graphical representations of its notations. This criterion enables the registration of non-visual marks within a register primarily designed for visual entries. Prior to 2017, applications mainly relied on written descriptions or sheet music.
The statutory framework of the Trade Marks Act, 1999 clearly indicates that Indian trademark law does not limit protection to visual marks alone. However, two cumulative requirements act as stringent filters: graphical representation and distinctiveness. Consequently, non-traditional marks such as sound and smell are not prohibited; nevertheless, their registration depends on their ability to function as source identifiers in an objective and transparent manner.
Recognition of Sound Marks: The Kingfisher Jingle
Although the Indian Trade Marks Act does not explicitly provide for the registration of a “Sound Mark” as a trademark, it is generally understood that a trademark must be graphically representable and capable of distinguishing the applicant’s goods or services.
Sound marks have become an essential component of modern trademark strategy, as they are now commonly registered and protected. In 2008, Yahoo[6] Yodel filed as the first sound mark in India. Subsequently, ICICI[7] Bank secured protection for its corporate jingle. Certain sounds—such as Netflix’s “ta-dum”, the Nokia startup tone, the Airtel signature tune, the Britannia musical logo, and the Reliance Jio sonic logo—are also registered as sound marks. More recently, a company in the hotel sector registered the “Taj” sonic sound as the country’s first sound mark in that industry. Trademark law acknowledges the recall value of such audio identifiers, making them eligible for registration in India.
United Breweries Limited filed the iconic Kingfisher jingle, “Oo la la la le o,” as a sound mark. The Trade Marks Registry issued the registration on January 31, 2025, and it was officially sealed on February 5, 2026. This registration is a first for the Indian alcoholic beverage industry and highlights the growing importance of “sonic identities” in a multimodal marketing environment.
In 1996, the Kingfisher jingle was first used for commercial purposes. Over more than three decades of consistent use, the jingle evolved from a simple advertising mnemonic into a cultural signal that instantly elicits brand recall, even in the absence of visual logos. Its long-term, exclusive use helped the Registry successfully pass its “test of distinctiveness” marks must either be inherently unique or have acquired distinctiveness through usage. A multiclass program was employed to process the filing of this sound mark, focusing on Class 32 and Class 33, which include beers, malt-based beverages, mineral waters, and non-alcoholic beverages.
A sound mark must carefully balance graphical representation and auditory perception to be properly registered in India. To be graphically recorded—usually through musical notation a sound mark must demonstrate that it has acquired a “secondary meaning” in the eyes of the general public. The Registry conducted a thorough investigation to ensure that the melody was distinctive and did not overlap with existing registrations. Once the uniqueness of the “Oo la la la le o” melody was established, the application was accepted. This sound notation serves as a “visual surrogate” for the Kingfisher jingle in a registry designed for visual entries, enabling examiners to specify the precise level of protection granted.
The Olfactory Frontier: Sumitomo’s Rose-Scented Tyre Trademark
Olfactory or smell trademarks, such as logos or words associated with goods or services, protect distinctive fragrances as indicators of their commercial origin. These trademarks are among the most challenging to register because they lack precise written descriptions and clear graphical representations, are subjective and potentially confusing, and cannot be recorded in a conventional form. However, a perfume’s scent can be graphically represented through its chemical formula and supporting data that enable its replication.
In contrast to sound marks, which have a well-established procedural framework in India, olfactory or smell marks have traditionally been considered “practically impossible” to register due to the subjective nature of scent and the challenges associated with graphical representation. However, in November 2025, the CGPDTM approved Sumitomo Rubber Industries’ application for a “floral fragrance/smell reminiscent of roses as applied to tyres” in Class 12 under the Trade Marks Act, 1999. This decision marks a significant shift in Indian intellectual property jurisprudence, as it effectively removes the longstanding barriers that have prevented sensory marks from being formally registered.
The application, filed on a “proposed to be used” basis, defined the mark as a rose-like scent intentionally applied to automobile tyres. During the investigation, the Registry raised the following objections: first, whether Section 2(1)(zb) of the Act permits a graphical representation of a smell; and second, under Section 9(1)(a) of the Act, whether the fragrance possesses distinctive character.
- Graphical Representation:
Since smell is subjective and intangible, the Registry initially argued that it could not be sufficiently characterized to meet statutory requirements for certainty. Consequently, the application relied on a scientific methodology developed in collaboration with scholars from the Indian Institute of Information Technology in Allahabad. To produce a quantitative and reproducible vector-based representation, a 7-dimensional vector model of the scent—comprising flowery, fruity, woody, nutty, spicy, sweet, and minty dimensions—was developed.
The Registrar carefully examined this representation and determined that the fragrance was composed of the following basic ingredients, listed in descending order of strength. While Indian law does not explicitly state these criteria, they are based on universally acknowledged principles derived from comparative jurisprudence, including the rationale in Sieckmann v. Deutsches Patent und Markenamt[8]. The Registrar concluded that the 7-dimensional vector model was sufficiently clear, precise, self-contained, understandable, and objective. It adequately specified the “metes and bounds” of the claimed mark, thereby satisfying the statutory requirement for graphical representation under Section 2(1)(zb) of the Act.
Distinctiveness of the Smell Mark:
According to the Registrar, distinctiveness requires careful consideration, especially regarding non-traditional marks. The applicant argued that tyres are the source of the rubber and related chemical odor, while a floral fragrance is unrelated to the characteristics, nature, or function of tyres. Therefore, the fragrance is arbitrary in relation to the products.
The Registrar stated that the rose-like aroma, unlike the usual rubber odor, would create a striking sensory contrast when a car equipped with these tyres passed by. This contrast would enable customers to associate the unusual scent with a specific commercial source. Since the fragrance is unrelated to the functional characteristics of the tyres and does not define them, it was deemed inherently distinctive.
Additionally, the Registrar acknowledged that uniqueness is dynamic and must be evaluated in light of the growing number of trademarks. In this instance, however, the arbitrary and unexpected nature of the aroma reinforced the finding of distinctiveness.
The application for advertising under Section 20 of the Act[9] was approved after the Registrar accepted the standards for both distinctiveness and graphical representation. The mark was required to have a scientifically accurate graphical representation and to be promoted as an “olfactory mark” on a proposed-to-be-used basis.
[1] Sumitomo Rubber Co.’s Application No. 2001416 dated 31-10-1994.
[2] Section 2(1)(m), Trademark Act of 1999
[3] Section 2(1)(zb), Trade Marks Act, 1999.
[4] Section 9(1)(a), Trade Marks Act of 1999.
[5] Rule 26(5), Trade Mark Rules, 2017.
[6] P. Manoj, Yahoo Awarded India’s First Sound Mark; Nokia in Queue, Live Mint, Aug. 22, 2008.
[7] ICICI Secures Rights for Corporate Jingle, The Indian Express, Mar. 12, 2011.
[8] Raf Sieckmann v. Deutsches Patent und Markenamt, Case C-273/00, European Court of Justice
[9] Section 20, Trade Mark Act, 1999.
-Priyanka Dey, Ductus Legal
DUCTUS EDGE 