Non-Traditional Trademarks in India: Can You Register a Sound, Smell or Shape?

When most people think of a trademark, they think of a brand name or logo. But the Trade Marks Act, 1999 defines a "mark" broadly enough to include sounds, smells, colours, three-dimensional shapes, holograms, and even tastes — provided they meet the core requirement of being capable of graphical representation and distinctiveness. These are called non-traditional trademarks, and their registration in India is challenging but increasingly sought-after by brands that have built recognition through sensory experiences beyond visual identity.

What Are Non-Traditional Trademarks?

Traditional trademarks — words, logos, and device marks — are the most common and easiest to register. Non-traditional trademarks are marks that identify a brand through senses other than vision, or through three-dimensional or dynamic qualities. The Trade Marks Act, 1999 defines a mark to include "a combination of colours or any other combination thereof" and its definition is broad enough to accommodate sounds, shapes, and other non-conventional signs.

Two requirements apply to all marks, whether traditional or non-traditional: (1) the mark must be capable of being represented graphically in the Trade Marks Journal, and (2) it must be distinctive — capable of distinguishing the goods or services of one person from those of others.

Sound Marks in India

A sound mark is a distinctive sound that consumers associate exclusively with a particular brand — such as the MGM lion's roar, the Nokia ringtone, or the Yahoo yodel. India's Trade Marks Registry accepted its first sound mark — the Yahoo yodel — in 2008, marking a significant milestone in Indian IP law.

To register a sound mark in India, the applicant must provide a graphical representation — which means musical notation (if the sound can be notated) or a spectrogram (a visual representation of the sound's frequency over time), along with a description and a sound file. The sound must be inherently distinctive or have acquired distinctiveness through extensive use — jingles, ringtones, and signature sounds that consumers immediately associate with one brand are strong candidates.

Smell (Olfactory) Marks in India

Smell marks are among the most controversial categories of trademark globally. The fundamental challenge is graphical representation — how do you visually represent a smell in a trademark register? European courts have struggled with this for decades, with the ECJ ruling that a chemical formula or a simple description is insufficient.

India has taken a more pragmatic approach. In a recent development, the Trade Marks Registry accepted an application for a smell trademark where the smell was represented graphically using a scientific model mapping the chemical composition of the odour — the first such acceptance in India. The key principle is that the representation must be clear, precise, and objective enough that a consumer, trader, or court can determine the scope of the protection.

The practical bar for smell marks remains very high. The smell must have acquired exceptional distinctiveness — consumers must associate that specific smell with one brand, not with the product category generally. (For example, the smell of flowers is functional for perfume and cannot be trademarked, but a very specific synthetic fragrance used on tennis balls — as Sumitomo Rubber once attempted in the EU — might qualify.)

Colour Trademarks in India

Single colours and colour combinations can be registered as trademarks in India, provided they have acquired distinctiveness through extensive and exclusive use. The Trade Marks Act explicitly includes "combination of colours" in its definition of a mark. However, registering a standalone colour is among the most difficult forms of trademark to obtain because:

• Colours are a finite resource that competitors need to use freely in their industries — courts are reluctant to allow any single brand to monopolise a basic colour.
• The applicant must prove that consumers exclusively associate that specific colour with their brand — not with the product category generally.
• The colour must not be functional — a company cannot trademark a colour that provides a technical advantage (e.g., the specific blue-green colour of a swimming pool chemical that indicates it is active).

The most famous Indian colour trademark dispute involved telecom operators, where courts recognised that a specific shade of purple had acquired such distinctiveness that consumers associated it with one operator. Colour combinations (such as the specific red, white, and black used by a brand on all its packaging) are generally easier to register than single colours.

3D Shape Marks in India

The shape of a product or its packaging can be registered as a trademark if it is distinctive and not merely functional. Famous global examples include the Coca-Cola bottle shape and the Toblerone triangular prism packaging. In India, shape marks face the following absolute grounds of refusal under Section 9(3) of the Trade Marks Act:

• The shape must not result exclusively from the nature of the goods themselves
• The shape must not be necessary to achieve a technical result (functional shapes are excluded)
• The shape must not give substantial value to the goods independently of the trademark function (aesthetic shapes that drive purchase decisions may be refused)

Where a shape has acquired strong distinctiveness through extensive use and marketing — and where consumers recognise the shape as a brand identifier rather than merely a design feature — registration is possible in India.

Motion, Hologram and Position Marks

India's Trade Marks Rules, 2017 now explicitly recognise several emerging categories of non-traditional marks. A motion mark — a moving image or animation that serves as a brand identifier (such as the animated NBC peacock or the distinctive movement of a luxury watch mechanism) — must be represented by a series of still images or an MP4 file, with a description of the motion.

A hologram mark is a three-dimensional image created by laser technology — security holograms on credit cards or product packaging can qualify if they are sufficiently distinctive. A position mark is one that is placed in a specific position on a product or its packaging — for example, the red sole on the bottom of a Louboutin shoe (now famous globally).

How to Register a Non-Traditional Mark

The registration process for non-traditional marks follows the same general route as traditional marks — Form TM-A, filing with the Trade Marks Registry, examination, publication, and registration — but with additional representation requirements:

• For sound marks: musical notation or spectrogram + MP3 file
• For smell marks: chemical composition + graphical model + written description
• For colour marks: colour code (Pantone or RAL system) + sample + evidence of distinctiveness through use
• For shape marks: three-dimensional graphical representation from multiple angles + evidence of acquired distinctiveness
• For motion marks: series of still images or video file + description of the motion sequence

Crucially, applications for non-traditional marks that are not inherently distinctive must be accompanied by extensive evidence of acquired distinctiveness — sales figures, advertising expenditure, consumer surveys, media coverage, and duration of use.

Conclusion

Non-traditional trademarks represent the cutting edge of brand protection in India. As brands increasingly compete through multisensory experiences — sound, scent, tactile packaging, distinctive shapes — protecting these elements through trademark registration provides a layer of legal exclusivity that traditional trademark law alone cannot offer. The bar is high, but the protection is powerful and enduring.

If you believe your brand has developed a distinctive sound, smell, colour, or shape that consumers identify with your products, consult our trademark specialists →