Protecting Sounds and Scents in Sri Lanka – What Our Law Currently Says and Where It Must Go?

Can a jingle be trademarked in Sri Lanka? What about the smell of a product? The short answer, right now, is no.

Branding has always been about standing out. Businesses have traditionally used logos, names and slogans to establish their identities. But modern commerce is moving far beyond the visual. The distinctive chimes you hear when a brand appears on screen. The warm, woody scent that hits you the moment you walk into a luxury hotel lobby. These are not accidents. They are carefully engineered brand assets, and in many parts of the world, they are legally protected.

In Sri Lanka, however, they are not. At least, not yet.

What Exactly Are Non-Traditional Trademarks?

A traditional trademark is something you can see, a word, a device mark, or a combination of these. A non-traditional trademark (NTTM) is any distinctive brand identifier that falls outside that visual category.

The main types include:

Sound marks –

Distinctive audio signatures (jingles, musical notes, voice tones)

Scent marks / olfactory marks –

Unique fragrances applied to goods or services

Motion marks —

Animated logos or distinctive moving sequences

Colour marks —

A single colour or combination claimed as a brand identifier

Taste marks —

Flavours that function as a source identifier

Of these, sounds and scents are the two most commercially relevant to Sri Lankan businesses right now, and the two most illuminated by India’s recent developments.

What is the Sri Lankan Legal Position – Stuck at ‘Visible Signs’?

The governing legislation for intellectual property in Sri Lanka is the Intellectual Property Act No. 36 of 2003 (‘Act’). Under this Act, a trademark is defined as ‘any visible sign serving to distinguish the goods of one enterprise from those of another enterprise.’

It means that any mark which cannot be perceived by the eye alone is effectively incapable of being registered as a trademark in Sri Lanka. An audible sign, however distinctive, falls outside the scope of registrable marks under the current statutory definition.

It is a commercially significant barrier. Businesses investing in audio branding, corporate jingles, app notification sounds, brand mnemonics currently have no domestic trademark mechanism through which to protect those assets in Sri Lanka. The same applies to any enterprise that has developed a signature scent as part of its customer experience.

The National Intellectual Property Office of Sri Lanka (NIPO), which administers the country’s IP system under the 2003 Act, operates within that legislative framework.

How India Has Moved Ahead – Sound Marks

India offers the most instructive regional comparison. The Trade Marks Act, 1999 defines a trademark as any mark ‘capable of being represented graphically’ and capable of distinguishing goods or services.

While this formulation still imposes a graphical representation requirement, it is markedly more flexible than Sri Lanka’s ‘visible sign’ standard.

That flexibility has allowed India to formally recognise sound marks. Under the Trade Marks Rules, 2017, applicants can submit an MP3 audio file not exceeding 30 seconds, together with a graphical representation of the musical notation.

This dual submission satisfies the graphical representation requirement while ensuring the Indian Trade Mark Registry (Registry) has an accurate record of exactly what sound is being protected.

The results have been tangible. The first sound mark ever registered in India was the iconic Yahoo! yodel, which received registration in 2008.

The commercial logic is straightforward. If a consumer can identify your brand from a sound alone, that sound has brand value. Protecting it with a registered trademark prevents competitors from using confusingly similar audio to trade off your reputation.

The 2025 Breakthrough – India’s First Scent Mark

If sound marks represented one frontier, scent marks represent a frontier only recently crossed, and the development is recent enough, and significant enough, to deserve close attention from Sri Lankan IP practitioners and businesses.

In November 2025, India accepted its very first olfactory trademark. The applicant was Sumitomo Rubber Industries Ltd., a Japanese tyre manufacturer. The mark, a floral fragrance reminiscent of roses, applied to vehicle tyres.

What made this possible was not a change in the law, but an innovative approach to satisfying the existing legal requirement of graphical representation. Sumitomo’s legal team used advanced scientific mapping and chemical formulas to visually represent the smell across seven defined scent dimensions, floral, fruity, woody, and others, producing a representation that the Registry was ultimately satisfied met the statutory standard.

The significance of this cannot be overstated. Olfactory marks have long been considered the hardest category of NTTM to protect precisely because a smell, by its nature, seems impossible to draw or write down.

India’s acceptance of Sumitomo’s application, through sophisticated scientific methodology, represents a genuine breakthrough in how the law can adapt to accommodate sensory marks.

The Legal Gap – Why This Matters for Sri Lankan Businesses?

The contrast between the two jurisdictions is stark. India, operating under a ‘graphically representable’ standard has now registered both sound marks and a scent mark. Sri Lanka, operating under a narrower ‘visible sign’ standard cannot currently register either.

Audio branding in the areas of digital and streaming has become quite an important marketing tool. Businesses that develop distinctive sound identities for their brands must have domestic protection, which they currently do not. Similarly, retail brands that employ memorable in-store experiences for customers and hospitality brands, that invest in signature scents to create immersive brand environments, should have a protection.

Sri Lankan exporters who have developed audio or olfactory brand signatures may find those marks protected in India but unprotected at home.

What Reform Could Look Like – A Practical Roadmap?

A Sri Lankan reform pathway may involve the following:

1. Amending the Statutory Definition

A change to the definition of trademark would be required. The current definition requires marks to be ‘visible signs’ in order to be registered as a trademark. The definition can be revised to include ‘any sign capable of being represented in a manner that enables the Registry and the public to determine the clear and precise subject matter of the protection’ aligned with the approach taken in the European Union for instance.

2. Developing Filing Procedures for Non-Visual Marks

In addition to amendments to the relevant provisions of the law, procedural infrastructure supporting the registration of a broader definition of marks would also have to be put in place. For instance, NIPO would need to develop clear filing requirements:

For sound marks –

Submission of an MP3 audio file alongside musical notation or a written description of the sound

For scent marks –

Submission of a chemical formula, scientific scent mapping, or other representation that precisely and objectively identifies the fragrance claimed

3. Establishing Examination Standards

NIPO would also need to have in place the necessary expertise on how to assess NTTMs, particularly the questions of distinctiveness and the risk of marks being “functional” (i.e., a scent that is an inherent characteristic of the product rather than a brand identifier). India’s experience in this area would be a practical reference point.

Conclusion

The branding landscape is evolving fast. A jingle, a signature scent, an audio logo, these are not novelties or marketing gimmicks. They are legitimate commercial assets that businesses invest in, build equity around, and rely upon for consumer recognition. The law must keep pace with commercial reality.

The Act served the country well at the time of its enactment. But the ‘visible sign’ definition is now a constraint that leaves Sri Lankan businesses legally exposed in an area of growing commercial importance. India has demonstrated, clearly and recently that trademark law can be adapted to accommodate sounds and even scents, without dismantling the entire system.

The question for Sri Lanka is not whether to reform, but when and how to do so thoughtfully, with clear definitions, workable procedures, and examination standards that give businesses real, enforceable protection.