Can a Color or Smell Really Be Trademarked in India?

In the cut-throat competition of brands today, a brand extends beyond a name or a logo; it could also be a specific sound, a shade of color, or even a scent that would immediately evoke recognition of a particular product or company by consumers. With the above scenario, the question that arises as businesses seek new avenues of competitive differentiation is whether these elements, such as a color or even a smell, can qualify for trademark protection in India.

Most might find it weird to talk about trademarking a color or fragrance; however, that is exactly what falls into the category of non-traditional trademarks, which are increasingly getting recognition across the globe.

Legislatively permitted by the Indian Trade Marks Act, 1999, such marks are acknowledged subject to certain conditions, but their registration becomes more difficult than registering an ordinary word or logo trademark. The article aims to explain the legal position, practical hurdles, and real-world examples that would answer the question: Can a color or smell be trademarked in India?

Understanding non-Traditional Trademarks in India

The Trademarks Act, 1999, governs trademarks in India, defining a trademark as any mark that can be represented graphically and that distinguishes the goods or services of one person from those of another. While it may be obvious that the traditional marks included in this definition would be names, logos, and slogans, the law also provides for some recognition of non-traditional trademarks such as colors, shapes, sounds, or even smells, provided that certain conditions are fulfilled.

For any non-traditional mark to be accepted within the confines of its law in India, it must pass through the following key legal requirements:

-Graphical Representation mark in question must be represented in a manner that can be published and understood by others.

-Distinctiveness mark should not be generic or functional; it must ideally represent the goods or services of a particular business.

Unlike many countries, the kinds of marks outlined above are not expressly excluded, but since they are subjective by themselves, they are viewed by the trademark authorities with great suspicion. Most of the time, the Trademark Office in India takes a conservative view

And would entertain such registrations only when the applicant can prove that a particular color or smell has acquired a strong secondary meaning in the minds of the consumers.

Can a Color Be Trademarked in India?

This is definitely doable in our country: color or a combination of colors can be trademarked, but it is not a simple procedure and mostly fails. The Trademarks Act does not expressly exclude colors from being protected but requires that they act as an identifier of source-before the public would be able to identify a brand with that color instantly.

Trademarking an individual color is difficult. Colors are often seen as functional or ornamental features of goods, with courts generally hesitant to grant exclusive rights to them. But if the trademark claimant develops proof that a specific shade or hues in combination have acquired secondary meaning, through long, exclusive use, their product or service also may be registered.

For instance, the leading case on this subject is the well-loved red sole shoes of Christian Louboutin. In 2018, the Delhi High Court upheld Louboutin's contention that the red sole is a distinguishing mark of its high-end footwear. It demonstrates that color will, when utilized consistently and distinctively, fall within the ambit of trademark protection, even in India.

Applicants are, however, expected to bolster and substantiate their claims with strong evidence like market surveys, advertising materials, and instances of consumer recognition. Just tagging a color to a product or packaging won't suffice unless the color is sufficiently linked to the brand in the mind of the public.

Can a Smell Be Trademarked in India?

In theory, yes, but the practice is extremely rare and legally complicated. The Indian Trade Marks Act does not expressly prohibit scent marks, and since the law allows any mark that can be graphically represented and is capable of distinguishing goods or services, smells are not excluded. But the practical problem lies in fulfilling these two legal conditions.
The biggest challenge with a smell trademark is the requirement for a graphical representation. How do you actually picture smell in such a way that it is clear, objective, and reproducible on official records? Phrases like "smells like roses" or "lemony fragrance" are vague and subjective. Scientific formulas (like chemical compositions) could be too technical to adequately reflect how the smell itself is experienced.

It is evident that most jurisdictions, including the United States and the European Union, are better placed to deal with non-traditional marks. However, very few smell trademarks exist. One well-known company is a Dutch company that registered the aroma of freshly cut grass for tennis balls. But these are the exceptions, not the rule.

There is no precedent to date about a registered smell trademark in India. Until better legal and scientific standards about how smells can be described or tested are established, it would remain impractical, largely to register a scent as a trademark under Indian law.

What Are the Legal Requirements for Registering a Color or Smell Trademark?

Furthermore, the registrability requirements for a color or smell trademark in India are fundamentally similar to those making them qualify for registration as conventional trademarks, but at a much stricter threshold. The legal requirements are, therefore, stated below:

- Graphical Representation

It is a prerequisite that the mark can be represented graphically in a manner that is clear and objective. For color marks, some of the points usually mentioned include the specific shade (for example, a Pantone code) and how it is to be used on packaging or products. For smell marks, however, graphical representation remains a major barrier since smells themselves are not something that can be visually expressed in a universally understood format.

- Distinctiveness
The applicant has to demonstrate that their colors or smells are neither generic nor functional but distinctive in nature concerning the applicant's goods or services. This is proved mostly by the applicant's wide and consistent use of the mark and evidence of the relevant public associating the color or the scent with the trademark.

- Secondary Meaning (Acquired Distinctiveness)

The applicant must show that the mark has developed distinctiveness over time because the color and smell are not inherently distinctive. Evidence for this can be demonstrated through:

• Survey participation by the consumer

• Media coverage

• Advertising history

• Sales statistics

• Market analysis showing consumer awareness

- Non-Functionality

If the color or smell fulfils a functional condition (like the color blue of a coolant or the lemon scent of a cleaning product), the trademark application might get rejected. It should not provide a functional or technical advantage and should be restricted to brand identification.

Compliance with these criteria requires careful drafting of the legal documents and strategic branding, and the documentation of their usage over time. Mere compliance will not suffice; the Trademark Registry will be disinclined to sanction a non-traditional mark.

Global and Indian Examples of Color and Smell Trademarks

Gauging how courts and trademark offices have viewed the treatment of color and smell marks, not just globally but also in India-should dispense insight as to what such marks are realistically able to achieve

- Examples of Color Trademarks

Among the very few prominent cases is that of the red sole of Christian Louboutin. This famous red color on the soles of heels has obtained trademark protection in many jurisdictions, including India. In 2018, the Delhi High Court ruled that the red sole had acquired distinctiveness and, on that account, Louboutin made a valid claim that it should be protected under Indian trademark law. The case became very significant, proving that color trademarks are not only possible in India but also enforceable if consumer recognition is relatively strong.

In India, while there are few known public examples, companies have filed and achieved trademark rights in color combinations, particularly in packaging, textile patterns, or label designs. However, single-color marks are usually less common, and these are granted in rare cases when there is very strong evidence of brand association.

- Examples of Smell Trademarks

Smell marks are even scarcer. A famous example internationally is the smell of freshly cut grass, which was registered by a Dutch tennis ball company with the European Union Intellectual Property Office. In the U.S., one floral aroma used in the manufacture of sewing thread had been authorized. Such cases are rare, and most eventually end in some form of legal contestation or clarification.

As for India, there is currently no registered case of smell trademarks. Technically, the law makes it possible, but the practical difficulty in the representation and examination of smell has made the enactment nearly unworkable. It appears that unless the legal framework evolves, such trademarks are likely to remain theoretical in the Indian context.

In Conclusion, marking a color or a scent may sound like an odd idea, but in today's branding environment, such features could be more powerful in actual value recognition. Indian law does not block any registration of these non-standard trademarks, such as colors and scents. Attaining legal protection for them is nonetheless uphill.

It is enforceable in trademarks for colors-only or for a combination of colors with regard to the color obtaining great effectiveness over time. Strong proof, long use, and clear association with consumers would support that. Cases successful like those of Christian Louboutin, involving the red soles, show how color marks can be enforced in India under the right circumstances.

On the other hand, smell trademarks remain a theoretical construct in India. The challenge of graphical representation, along with the absence of practical guidelines, makes it really hard to register a scent as a trademark. Until regulatory or technological solutions turn up, smell trademarks seem unlikely to be granted in the Indian space.

With this option, for businesses that want to take advantage of the benefits of non-traditional trademarks, the right way is to build strong designations around the color or scent over time, document well the use of the colors or scents, and consult with an expert in ways of approaching the application. With the right measure and accompanying evidence, even a shade or a scent can be turned into legal cash.