In 2008, a four-second yodel became India’s first registered trademark that nobody can see. Yahoo’s yodel cleared the Indian register, ICICI Bank’s jingle followed as the first from an Indian company, and the Trade Marks Rules, 2017 turned sound marks from a curiosity into a codified filing route.
Colour combinations sit inside the statute’s own definitions. Smell marks, meanwhile, remain an empty page on the register — and are likely to stay that way.
This guide covers the three main non-conventional marks in India: how to file a sound mark under Rule 26(5), what colour protection actually covers, why no smell mark has ever been registered here, and when a startup should bother with any of them.
What Indian law counts as a mark
Section 2(1)(zb) of the Trade Marks Act, 1999 defines a trademark as a mark capable of being represented graphically and capable of distinguishing one person’s goods or services from another’s. Section 2(1)(m) defines mark broadly — devices, names, words, letters, numerals, the shape of goods, packaging, and expressly, a combination of colours.
Every non-conventional mark must pass the same two gates. First, graphical representation: the Registry must be able to record the mark on paper in a way anyone can look up. Second, distinctiveness: the public must read the sound or colour as a badge of origin, not decoration. Sound clears both gates today. Colour clears them with effort. Smell fails the first gate outright.
Sound marks: the 30-second MP3 rule
Before 2017, sound marks squeezed through on musical notation alone. The Trade Marks Rules, 2017 made the route explicit: Rule 26(5) requires a sound mark application to be submitted in MP3 format, not exceeding thirty seconds, along with a graphical representation of its notations — in practice, the melody transcribed on a musical staff.
The distinctiveness test still applies on top. A registrable sound is short, recognisable and learned by the public as pointing to one business — a composed jingle or sonic logo. Commonplace sounds fail: a doorbell chime for doorbells is the audio equivalent of a descriptive word, and generic tunes belong to everyone.
If a customer can hum your brand, the law will let you own the hum.
India’s registered sound marks
The club is small but real:
- Yahoo’s yodel (2008). The first sound mark registered in India — the three-syllable yodel that closed every Yahoo ad of the era.
- ICICI Bank’s corporate jingle. The first sound mark registered by an Indian entity, turning a few notes of brand audio into registered property.
- A slow trickle since. Global brands with famous sonic logos have extended filings to India, and Indian broadcasters and consumer brands have followed. The register still counts these in dozens, not thousands.
The gap is the opportunity. India runs on audio branding — decades of jingles that entire generations can sing — yet very few are registered. An unregistered jingle relies on passing off, the hardest and costliest route to enforce.
Colour marks: combinations yes, single colours rarely
Colour sits inside the statute itself: a combination of colours is expressly a mark under Section 2(1)(m). Section 10 adds the mechanics — a trademark may be registered with a limitation to specified colours, and a mark registered without any colour limitation is deemed protected for all colours.
A colour combination applied in a consistent pattern — a two-tone pack, a striped scheme — is a realistic filing, especially with use evidence. A single colour standing alone is the hardest case in trademark law: the examiner asks how one trader can fence off one of the visible spectrum’s few workable colours, and demands acquired distinctiveness few brands can show. Cadbury’s long fight over its purple in the UK shows how contested the single-colour question stays even for a global icon.
Indian courts protect colour schemes most readily through trade dress and passing off — the Delhi High Court’s protection of Colgate’s red-and-white scheme against Anchor is the standard citation. Registration of the combination strengthens exactly that kind of claim.
You cannot own red. You can own what red-over-white in that exact arrangement has come to mean.
Thinking of registering a jingle or colour scheme? We will tell you in one free call whether it can clear the Registry, and file it correctly if it can.
Ask about non-conventional marks →Smell marks: the register’s empty page
No smell mark has ever been registered in India. The obstacle is the first gate: graphical representation. There is no accepted way to put a smell on paper. A chemical formula describes the substance, not the smell. A verbal description — fresh-cut grass, balsamically fruity — is subjective. A deposited sample degrades.
Europe wrestled with this in the Sieckmann case (2002), where the EU’s top court held that a graphical representation must be clear, precise, self-contained, easily accessible, intelligible, durable and objective — a test no smell description, formula or sample could meet. Indian law kept the graphical-representation requirement, and the 2017 Rules that opened a route for sound created none for smell.
If scent is genuinely part of your product’s identity, protect it sideways: keep the formulation a trade secret under strong confidentiality agreements, and register the packaging and colour scheme that customers associate with the scent.
Should your startup file a non-conventional mark?
In sequence, almost never first. The order of operations for a young brand is unchanged: the word mark protects the name people type and say — start with trademark registration for the name, then the logo. Non-conventional marks are third-round assets, filed when the jingle or colour scheme has had media spend behind it and recognition to show.
When that round comes, three practical notes. First, expect examination scepticism and budget for a reasoned objection reply — audio and colour filings draw questions by default. Second, if the sonic logo travels with the brand abroad, extend it through the Madrid Protocol — one filing reaches 130+ countries, though each country applies its own rules to non-conventional marks. Third, for product shapes and packaging aesthetics, compare the trademark route against design registration, which protects the look for up to 15 years without a distinctiveness battle.
A jingle the whole country can sing is an asset. A registered jingle is property. The difference is one 30-second MP3 and a filing.
India’s register now has room for what a brand sounds like and looks like, not just what it is called. If your audio or colour identity already does real commercial work, the 2017 Rules give you a clean route to own it — file the name first, then claim the rest of the senses.
Your brand is only yours when you file it.
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