Most people consider a trademark to be a logo, a brand name, or a slogan. However, intellectual property law has long recognised that the human senses extend well beyond sight and reading. For the last few decades, there has been a new type of protection called unconventional or non-traditional trademarks that can be granted for signs that are perceived by sound, smell, motion, taste, and even touch. With brands developing more and more complex ways to engage consumers, such non-visual identifiers are no longer “exotic” trademarks at the edge of trademark law. They are quickly gaining acceptance and worth as tools of brand strategy.
Sound Marks: When a Tune Becomes a Brand
A sound mark is a mark applied to a distinctive sound that consumers rely on as a source of goods or services. Just like a consumer can identify a brand by its visual logo, they can also recognise it by its characteristic sound mark. The most memorable in the world include the MGM lion’s roar, NBC chimes, and Intel’s 5-note sonic logo. In India, the Trade Marks Act, 1999 allows for the registration of sound marks when they can be represented graphically, usually in musical notation or a sonogram. The idea has caught on firmly in India, as evidenced by the registration of Britannia’s jingle “ting-ting-ta-ding” and Yahoo!’s yodel as sound marks. The fundamental rule continues to be that the sound must serve to distinguish the commercial source of the goods/services and not serve as a mere musical ornament.
Smell Marks: The Most Elusive Brand Identity
Olfactory marks protect a distinctive fragrance as a trademark. They are certainly some of the most complicated of all non-traditional marks, largely because of the challenges the world’s trademark statutes face in being able to graphically represent a smell. The United Kingdom led the way in this respect with the world’s first smell mark issued to Sumitomo Rubber Industries for a rose-like fragrance infused into its tyres. The European Union was more restrictive after the Sieckmann case, when the Court of Justice ruled that a chemical formula or verbal description of a smell was not enough to be considered for graphical representation; the mark had to be clear, precise, self-contained, easily accessible, intelligible, durable, and objective. The stringent requirement has led to only a few olfactory marks having made it worldwide.
India’s Landmark Moment
On 21st November 2025, in a historic first, the Trade Marks Registry accepted for advertisement a trademark application for a ‘floral’ fragrance reminiscent of roses, applied to tyres, filed by Sumitomo Rubber Industries[1]. The Registry had previously voiced concerns on distinctiveness and graphical representation in the Trade Marks Act, 1999. To address the representation problem, researchers proposed a scientific vector-based model for representing scent marks by categorising fragrances into scent families such as floral, fruity, woody, minty, etc., in an effort to satisfy graphical representation requirements under Indian trademark law. The proposal was discussed favourably in IP circles, including by senior IP lawyer Pravin Anand acting as amicus curiae. It was argued that a rose fragrance for tyres could be considered non-functional and potentially distinctive as the scent had no functional relationship with the product. The decision marks a change in the trademark jurisprudence in India and puts India in the company of a few jurisdictions in the world that are ready to play a spirited game with the science of scent and its laws as a brand identifier.
Motion Marks: Brands That Move
A motion mark protects a moving image or a series of moving images. With the proliferation of digital interfaces, motion marks have become more and more vital. Well-known examples that are protected are the Windows start-up animation and the torch-bearing Columbia Pictures logo. The most important challenge in the legal arena is to achieve a good representation of movement in a non-moving filing system, which is currently being solved by most registries by accepting video files, GIF sequences, or a collection of static images with a description of the movement. As brands are increasingly communicating via digital animation, one of the most commercially valuable areas of non-traditional trademark protection is likely to be motion marks.
Other Unconventional Marks: Colour, Taste, Texture, and Hologram
The referred trademark space goes beyond the traditional territory of brand identity. Colour marks safeguard a specific colour or colour combination, such as Cadbury’s famous purple (Pantone 2685C) and Tiffany’s robin egg blue. A hologram mark protects a 3-D image or projection of light, especially in the financial and entertainment sectors. Perhaps the most controversial of all is the category of taste marks; some jurisdictions have considered applications for taste, but the challenge of distinguishing taste from a product’s functional nature has left very few to succeed. Texture marks, protecting the feel of a product’s surface, are similarly scarce. Each of these categories tests the foundational trademark principle of distinctiveness, whether a sign is capable of identifying a single commercial origin, with non-functionality acting as an additional hurdle for sensory marks, ensuring that no one can monopolise a feature essential to the product itself. It is a balance that courts and registries worldwide continue to recalibrate as sensory branding reshapes modern commerce.
Conclusion
Unconventional trademarks are part of a larger reality in today’s economy: people make their brand associations with all five senses, not just their eyes. As the doctrine evolves in the future and the legal systems of all countries, including India, become more sophisticated, the early investors in protecting their distinctive sounds, smells, and signatures will have a great competitive edge. The Sumitomo smell mark decision is more than just a case study in the law; it’s a testament to the readiness of Indian trademark law to embrace the many dimensions of modern branding.
About MAHESHWARI & CO.
MAHESHWARI AND CO. is a full-service Law Firm that represents its clients in a number of complex and high-value transactions. The firm works across four principal practice areas, Intellectual Property Rights, Corporate Law, Taxation and Litigation. The Firm is well positioned to help inventors leverage the IP Regime in India, aiming to accelerate and strengthen IP protection for its clients. As a trusted legal partner offering end-to-end IP services, the firm can guide clients through the complex procedural and substantive requirements of IP Protection in India and Internationally with alacrity and prompt efficiency.
Author: Akshi Seem, Associate Partner
Co- Author: Aditya Narayan, Intern
- https://tmrsearch.ipindia.1.gov.in/estatus/RegisteredTM/GetDocuments?DOCUMENT_NO=WFlaW1xdKi4sLiswKzBYWVpbXF0=
