It is a common query at the first meeting with an applicant, asked with genuine curiosity, whether a distinctive scent, a signature colour, or a unique taste can be “patented”. The doubt usually arises from memorable brand cues, such as a red-soled shoe or a familiar packaging colour, and from food products whose flavour profile feels original. The answer under Indian law is nuanced. Protection is possible, but rarely through patents for such subject matter. It depends on whether the right tool is used, namely patents, trademarks, copyright, or designs, and whether strict legal tests of distinctiveness and non-functionality are satisfied.
Smell, Colour, Taste: Patent or Trademark?
The starting point is simple. Patents protect inventions, that is technical solutions, not sensations as such. A smell, a colour, or a taste, without more, is not a patentable invention. What may be patented is a novel and inventive composition or process that produces a particular scent or flavour, for example a new fragrance formulation or a non-obvious method of extracting aromatic compounds. If the claimed subject matter merely aggregates known ingredients without synergistic effect or technical advancement, it is excluded. The Indian Patents Act, especially Section 3, bars mere admixtures and other non-inventions, which in practice rejects claims that try to monopolise a sensory result rather than a technical teaching.
Trademarks serve a different purpose. They protect signs that distinguish the source of goods or services. Indian law explicitly recognises that a trademark may include the shape of goods, their packaging, and a combination of colours. The Trade Marks Act requires that a mark be capable of representation and capable of distinguishing. This twin test sits at the heart of non-traditional marks. The 2017 Trade Marks Rules modernised practice for some formats, for example allowing sound marks to be filed in MP3, but olfactory and taste marks still struggle at the representation gate.
Can a Smell be Protected in India?
Trademark angle, not patent
As a patent, the “smell itself” fails. A patent claim must teach how to make and use the invention and must be new and inventive over prior art. Claiming a scent without a definite composition or process does not pass muster. However, brand owners often ask if the scent of a product or store can function as a trademark.
The representation hurdle
The difficulty is representing a smell with clarity and precision. Indian practice, aligned with international principles, requires a representation that is clear, precise, self-contained, easily accessible, intelligible, durable, and objective. In India, there is no publicly reported instance of a smell mark proceeding to registration, largely because chemical formulae, written descriptions, or samples do not satisfy the representation standard in a consistent, verifiable way. Law firm surveys and practitioner literature confirm that scent marks remain aspirational here.
Applicant takeaways for smell marks
Build distinctiveness through consistent, long-term use, coupled with consumer surveys that link the scent to a single source.
Be prepared for heavy evidentiary burdens and potential refusal at the representation stage.
Consider protecting the underlying fragrance formulation by patent, if it is technically novel and inventive, and by confidentiality contracts if trade secrecy is realistic.
Can a Colour be Protected in India?
Colour as a trademark
Indian law permits registration of a combination of colours and, in principle, even a single colour if it has acquired distinctiveness, although single-colour marks face stiff scrutiny. Courts have granted strong interim and final reliefs where overall trade dress, including colour schemes, causes likelihood of confusion. In Colgate-Palmolive Co. v. Anchor Health & Beauty Care (Delhi High Court, 2003), the court restrained use of a red and white scheme and get-up that the plaintiff had built extensive goodwill in, treating the trade dress as source-identifying. The ratio was that deceptive similarity in overall get-up, including colours, can amount to passing off even without identical word marks.
Single colour distinctiveness, and the red-sole debate
The single-colour road is steeper. In Christian Louboutin SAS litigation before the Delhi High Court, the famous red sole enjoyed recognition and protection in India, including a finding of well-known status in one proceeding, yet later orders reflected judicial caution about monopolising a colour per se without clear association and without slipping into functionality concerns. The practical lesson is that proof of acquired distinctiveness, precise description of the claimed sign, and non-functionality are essential, and outcomes can vary across benches.
Applicant takeaways for colour marks
A combination of colours tied to distinctive packaging or get-up is the more reliable path.
For a single colour, compile long, continuous use, market share data, advertising spend, media recognition, and robust consumer surveys showing the public links that exact shade, in that context, to your business alone.
Define the sign precisely, for example by shade reference, and ensure the colour is not functional for the goods, that is not essential to their use or affecting their cost or quality. Practitioner analyses and foreign cases underscore how vague descriptions and widespread industry use weaken claims to colour exclusivity.
Can a Taste be Protected in India?
Patent is usually the wrong tool
A taste, standing alone, is not patentable. What may be patentable is a novel composition or process that yields a new flavour profile through an inventive step, for instance a stabilisation method for natural sweeteners that produces unexpected technical effects. Yet even then, the patent does not confer rights over the taste sensation per se. The claim must be drafted to the composition or method, not to the taste. Section 3 exclusions, particularly on mere aggregation of known ingredients, commonly block such claims.
Taste as a trademark, in theory
As a trademark, taste faces representation and functionality roadblocks. A flavour is difficult to represent with the required clarity, and many flavours in foods, beverages, and pharmaceuticals will be found functional because the taste contributes to consumer acceptance or product quality. Indian registries and courts have not, so far, blessed a taste mark, and international experience is sparse for similar reasons.
Design and Copyright: Where Do They Fit?
Designs Act: Registration can cover features of shape, configuration, pattern, ornament, or composition of lines or colours applied to an article. This can, in an appropriate case, lock in a visual appearance that includes a colour arrangement on a product’s surface. However, design protection targets industrial design, not smell or taste, and it cannot protect features dictated solely by function.
Copyright: Packaging artwork and labels attract copyright as artistic works, but copyright does not protect ideas such as “the flavour of X” or “the colour red for toothpaste”. The remedy is complementary to, not a substitute for, trademark protection.
Practical Roadmap: Choosing the Right Protection
If your innovation is technical
Consider a patent for a novel fragrance or flavour composition or process with demonstrable technical advance.
Use confidentiality agreements during development and, where patents are not viable, maintain trade secrets in recipes or extraction parameters.
If your goal is brand differentiation
Build a trademark strategy around what is realistically protectable now, such as a distinctive word, logo, shape of packaging, and a combination of colours.
For single-colour aspirations, plan a long game of evidence collection to prove acquired distinctiveness and watch for functionality objections. Cases like Colgate v. Anchor illustrate how overall colour-led get-up wins when confusion is likely, whereas the Louboutin experience shows the hurdles for single colours standing alone.
Enforcement mindset
In infringement or passing off, Indian courts assess the overall impression. Even if a competitor avoids your exact word mark, copying the trade dress, including your colour scheme and packaging get-up, can invite injunctions where confusion is likely among ordinary consumers. The jurisprudence is consistently protectionist of hard-won secondary meaning.
Common Questions, Answered Inside the Strategy
Is filing for a single colour worth it?
It can be, but only after years of use and only if your evidence proves that the relevant public immediately associates that exact shade, on those goods, with you. Plan filings for the combination of colours first, then consider single-colour evidence-based filings as your market matures. Practitioner commentary and case outcomes indicate that single-colour claims should be carefully scoped and heavily evidenced.Can I claim “the smell of my store” as a trademark?
In theory yes, if it is distinctive and non-functional. In practice, no registrations are publicly reported in India to date because of representation issues. A better approach is to protect the underlying fragrance formula by patent or secrecy and protect the brand ecosystem through conventional trademarks.What if my recipe is special but not patentable?
Use layered protection, starting with trade secrets and strong contracts. Pair that with distinctive packaging, shape, and colour combination marks, and consider design registrations for the article’s visual features where appropriate.How do I avoid functionality objections for colour or taste?
Show that the colour or taste does not give any utilitarian or quality advantage and is not customary in the trade. Provide evidence that alternatives exist and that your use is purely source-identifying. Narrow, precise descriptions of the claimed sign help.Bottom Line
You cannot patent a smell, a colour, or a taste per se in India.
You can patent a composition or process that yields a scent or flavour, provided it is novel and inventive.
You may register a combination of colours and, in rare, evidence-heavy cases, even a single colour as a trademark.
Smell and taste trademarks remain largely theoretical in India because representation and functionality hurdles persist.
The winning play is to match your objective to the right regime and build proof, particularly for non-traditional marks where distinctiveness and non-functionality decide outcomes.
