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Smell Marks And The Graphical Representation Requirement: A Critical Analysis On The Sumitomo Decision In India




Dr. Gulafroz Jan, Sr. Assistant Professor, Department of Law, School of Legal Studies, Central University of Kashmir


ABSTRACT


The acceptance of a rose-scented tyre as a trademark by the Indian Trade Marks Registry marks a significant development in the jurisprudence of unconventional trademarks. While the decision signals India’s willingness to engage with emerging forms of brand identification, it simultaneously exposes gaps in the doctrinal framework governing graphical representation, distinctiveness, and enforceability. This research paper critically evaluates the Sumitomo ruling and its implications for the future of scent marks in India.


I. Introduction


The landscape of trademark law has expanded beyond traditional indicators such as names, logos, and symbols to include non-conventional signs—colours, sounds, shapes, motions, and increasingly, scents. The registration of smell as a trademark is not always easy and becomes highly controversial all times andposes challanges on the count of distinctiveness and graphical representation. In India, the principal barrier to recognising smell marks has been the graphical representation requirement under Section 2(z)(b) of the Trade Marks Act, 1999.


A recent application by Sumitomo Rubber Industries Ltd., seeking registration for a rose-like scent applied to tyres, brought this issue to the forefront. The Registry’s decision to accept the mark represents a noteworthy departure from longstanding interpretive conservatism but raises substantive doctrinal and practical questions that remain unanswered.



Indian Journal of Law and Legal Research

Abbreviation: IJLLR

ISSN: 2582-8878

Website: www.ijllr.com

Accessibility: Open Access

License: Creative Commons 4.0

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All research articles published in The Indian Journal of Law and Legal Research are fully open access. i.e. immediately freely available to read, download and share. Articles are published under the terms of a Creative Commons license which permits use, distribution and reproduction in any medium, provided the original work is properly cited.

 

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The opinions expressed in this publication are those of the authors. They do not purport to reflect the opinions or views of the IJLLR or its members. The designations employed in this publication and the presentation of material therein do not imply the expression of any opinion whatsoever on the part of the IJLLR.

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