Beyond the Logo: The Legal Reality of Sound, Motion and Smell Marks in India

By Lucy Rana and Ananyaa Banerjee

The two gatekeepers

Indian trade mark law is, in principle, hospitable to non-traditional marks. The definition of “mark” in the Trade Marks Act, 1999 extends to the shape of goods, their packaging and combinations of colours, and the statute does not confine protection to words and logos. In practice, however, two requirements determine whether a sensory sign can actually be registered. The first is graphical representation — the sign must be capable of being represented on paper in a clear, precise and durable way. The second is distinctiveness — consumers must perceive the sign as identifying one source rather than as a mere feature of the product.

These two requirements explain almost the entire pattern of what succeeds and what does not. Where a sensory feature can be reduced to a stable graphical form and shown to function as a source identifier, registration is realistic. Where it cannot, the sign tends to fall at the first hurdle regardless of how strong its commercial association may be.

The commercial appeal of a sensory mark is rarely the problem. The problem is reducing a sound, a scent or a movement to a clear, durable graphical form.

Sound: the settled route

Sound is the non-traditional category on the firmest footing. Rule 26(5) of the Trade Marks Rules, 2017 expressly provides for sound-mark applications through submission of an MP3 recording of up to thirty seconds together with a graphical representation of the notes, typically in the form of musical notation. That procedural clarity has translated into practice: distinctive audio signatures — corporate jingles and device tones among them — have been accepted for registration where they are shown to be associated by consumers with a single undertaking. For a brand whose identity includes a recognisable sonic element, the route to protection exists and is reasonably well understood.

Shape and colour: possible, but demanding

Shapes and colours occupy a middle ground. The shape of goods or their packaging can be registered, but functional shapes are excluded and distinctiveness must be clearly established. Single colours are not separately codified and generally require proof that the colour has acquired secondary meaning — that consumers associate it exclusively with one brand — while combinations of colours are more readily protectable. The Delhi High Court’s recognition, in Colgate Palmolive v. Anchor, that a distinctive colour combination can be protected illustrates the point: the sign must do identifying work, not merely decorate the product.

Smell, motion and the comparative gap

Smell and motion marks remain the hardest to secure in India. The difficulty is not conceptual — a scent or an animated sequence can plainly function as a brand signal — but representational: there is no widely accepted way to depict a smell graphically with the precision the law demands, and motion and hologram marks pose comparable challenges. As a practical matter, scent marks have generally not been registered in India, and any reports of novel techniques to represent them should be treated with caution until tested. This is where the comparative gap is sharpest: some jurisdictions, including the European Union, have moved away from a strict graphical-representation requirement towards any representation that is clear and precise, opening the door wider to non-visual marks. India, for now, has retained the traditional requirement.

For brands pursuing an experiential identity — particularly in luxury, hospitality and retail, where sensory branding is most developed — the upshot is a layered reality. A sonic identity is protectable through an established route; a distinctive colour combination or shape is protectable with sufficient evidence of distinctiveness; a signature scent or motion is, for now, far harder to register in India than in some other markets. Understanding which elements of a sensory identity are realistically registrable, and which are better protected by other means, is the practical starting point.

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