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Issues Involved:
1. Passing off 2. Infringement of trade mark 3. Enquiry into accounts of profits Detailed Analysis: 1. Passing Off: The tort of passing off aims to protect commercial goodwill and ensure that a business's reputation is not exploited. The plaintiff must establish that their business or goods have acquired a reputation such that a substantial proportion of potential customers associate the name with them. In this case, the plaintiffs argued that the defendants' use of "Ellora Industries" as their trading name misled the public into believing that the defendants' time-pieces were associated with the plaintiffs' clocks sold under the trade mark "Elora." The court found that the defendants' trading name was likely to mislead the public and divert customers from the plaintiffs. The element of confusion is essential, and the court noted that both parties were in the same trade, increasing the likelihood of confusion. The court concluded that the defendants' use of "Ellora" constituted passing off as it misled the public into believing there was a connection between the defendants' and plaintiffs' businesses, thereby injuring the plaintiffs' goodwill. 2. Infringement of Registered Trade Mark: The plaintiffs' trade mark "Elora" was registered under the Trade and Merchandise Marks Act, 1958, giving them the exclusive right to use it in relation to the goods for which it was registered. The court noted that trade mark infringement does not require proof of an intention to deceive; it is sufficient if the representation is calculated to deceive. The defendants' use of "Ellora Industries" was found to infringe the plaintiffs' trade mark as it created confusion regarding the source of the goods. The court emphasized that trade marks serve to identify the source of manufacture and that the defendants' trading style "Ellora Industries" was a misleading designation that infringed on the plaintiffs' exclusive rights. The court upheld the trial court's finding of trade mark infringement and granted an injunction to restrain the defendants from using the name "Ellora." 3. Enquiry into Accounts of Profits: The plaintiffs sought an enquiry into the profits earned by the defendants from the alleged infringement. The court, however, denied this relief for several reasons. Firstly, the plaintiffs had not manufactured time-pieces themselves, limiting the scope of the infringement. Secondly, the defendants' time-pieces were sold under a different mark, "Gargon," which was distinctly printed on the products. Thirdly, the principle of ordering an account of profits is based on the theory that the defendant acted as an agent of the plaintiff, which was not applicable here as the plaintiffs were not in the business of manufacturing time-pieces. Lastly, the court found no reasonable prospect that the enquiry would yield a positive result. Therefore, the court dismissed the claim for an enquiry into profits. Conclusion: The court dismissed the defendants' appeal and upheld the trial court's decree for a permanent injunction against the defendants for trade mark infringement. The cross-objections filed by the plaintiffs were allowed to the extent that the defendants were also found guilty of passing off. However, the claim for an enquiry into accounts of profits was dismissed. The court ordered the defendants to deliver up the offending materials for destruction and to pay the costs of the suit and appeal.
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