Delhi High Court
Girnar Food & Beverages Pvt Ltd. vs Godfrey Phillips India Ltd. on 3 October, 1997
Equivalent citations: 1997VIAD(DELHI)260, 1997(2)ARBLR555(DELHI), 69(1997)DLT23, 1997(43)DRJ233, (1997)117PLR47
Author: S.K. Mahajan
Bench: S.K. Mahajan
JUDGMENT S.K. Mahajan, J.
(1) The order of Hon'ble the Single Judge granting interim injunction against the appellant restraining it from manufacturing, selling, offering for sale or distributing goods in relation to the trade mark "Super Cup Tea" or any other trade mark deceptively similar to the trade mark "Super Cup" in relation to tea, has been challenged by the appellant in this appeal.
(2) As we were satisfied that the matter needed consideration, the appeal was admitted for hearing on 28th July, 1997. By this order we are disposing of the application of the appellant under Order 41 Rule 5 for stay of the impugned order dated 23rd June, 1997.
(3) A few facts which are relevant for deciding this application are being stated hereunder :-
(4) The plaintiff/respondent before us had applied for the registration of their label as a trade mark. Their label comprised of the illustration of a cup and a saucer within a circle with the background of a triangle with a coequal board look which was placed within a circle. Over the circle were written the words "Super Cup" and below the illustration of cup and saucer "extra strong Ctc tea" and below it in the form of a cigar band was written "TEA CITY". Below the word "CITY" was green and yellow band.
(5) An objection being taken by the Registrar, the plaintiff/respondent disclaimed the word "Super Cup" and the illustration of cup and saucer in the label. The result is that although the respondent/plaintiff is marketing their goods in a polythene pouch containing the description "Super Cup" with illustration of a cup and saucer and the word "extra strong Ctc tea" below and the words "TEA CITY" written below that, the actual mark which is registered is only "TEA CITY". It is by constant use of the disclaimed part of the label, they claim they can restrain others from using "Super Cup" on packaging of their tea.
(6) The appellant also claims to be a reputed manufacturer of tea and it had been manufacturing and selling its Girnar Tea under various brand names. It also appeared to have decided to market one of its brand under the name "GIRNAR Super Cup TEA", and advertised and offered the same for sale in packages with the mark "Girnar Super Cup Tea" printed on a device of cup and saucer.
(7) Plaintiff found the same to be an infringement of its trade mark "Super Cup" and it, therefore, gave a notice on 11th January, 1996 to the appellant to stop marketing tea under the brand name "Super Cup Tea". On the appellant refusing to agree, the respondent filed suit against the appellant for an injunction alleging that by using the mark "Super Cup Tea" the appellant was trying to trade upon the plaintiff's goodwill and its popularity of tea sold under the same trade mark "Super Cup" and to pass off their goods as those of the plaintiff.
(8) By impugned order Hon'ble the Single Judge allowed the interim application of the respondent and restrained the appellant from manufacturing, selling, offering for sale or distributing goods in relation to the trade mark "Super Cup" or any other trade mark deceptively similar to the trade mark "Super Cup" till the disposal of the suit.
(9) As already mentioned above, after hearing the parties we felt that matter needed consideration and the appeal was, therefore, admitted. The respondent has opposed the application of the appellant for stay of the impugned order mainly on the ground that under Order 41 Rule 5 of the Code of Civil Procedure mere filing of the appeal shall not operate as stay of the order and this Court can stay the order only if sufficient cause is shown for stay and the Court is further satisfied that substantial loss would be caused to the appellant in case the order was not made. Elaborating his arguments, Mr.Lall states that as the respondent had been marketing its "Tea City" brand of tea with the brand name "Super Cup" since 1988 and the appellant is trying to pass off its goods as those of the respondent, there was neither sufficient cause for stay of the impugned order nor any loss would be caused to the appellant as it had allegedly started manufacturing and marketing its Girnar brand of tea under the brand name "Girnar Super Cup Tea" only since 1995. Mr.Lall has heavily relied upon the judgments reported as Movie Enterprises and Another Vs.Periasamy Mudaliar & Ors. Air 1952 Mysore 78; Bansidhar Vs.Pribhu Dayal ; Jamnagar Municipality Vs.Firm Ramji Vasram Air 1956 Saurashtra 113; and N.C.Iyanna and Ors. Vs.N.Channamma and Ors. Air 1967 Mysore 209.
(10) We have gone through the judgments referred to by Mr.Lall in support of his case. All these cases related to the stay of execution of money decree and while dealing with the same, the courts held that for stay of the decree the appellant must disclose the nature and details of substantial loss that may result so as to enable the Court to be satisfied whether substantial loss would be caused. It has also been observed that it was not enough merely to repeat the words of the Code and state that substantial loss will result; the kind of loss must be specified, details must be given and conscience of the Court must be satisfied that such loss would really ensue.
(11) There cannot be any dispute about the proposition advanced by Mr.Lall, however, considerations while granting stay of money decree and decree/orders of other nature may be different. The Code of Civil Procedure was amended in 1976 and it has now been specifically provided in Order 41 Rule 1(3) that where the appeal was against a decree for payment of money, the appellant shall, within such time as Appellate Court may allow, deposit the amount disputed in appeal or furnish such security in respect thereof as the court may think fit. Sub-rule 5 was added in Rule 5 of Order 41 and it states "notwithstanding anything contained in the foregoing sub-rules where the appellant fails to make the deposit or furnish the security specified in sub-Rule (3) of Rule 1, the Court shall not make an order staying the execution of the decree". It is clear from a conjoint reading of sub-Rules 1 and 5 of Order 41 that stay of a money decree stands on a different footing.
(12) Coming now to the facts of this case, we find that the mark "Super Cup" is not registered trade mark of the respondent and when it had applied for registration of trade mark "Tea City", it had disclaimed the exclusive right to use the mark "Super Cup" and the device of cup and saucer. When the label of the plaintiff/respondent was advertised for registration as a trade mark in Trademark Journal on 16th January, 1995 it was specifically mentioned that the "Registration of this trade mark shall give no right to the exclusive use of the words "Super Cup" and "sensible new way to buy tea" and the device of the cup and saucer".
(13) In view of the mark which is now registered, the words "Super Cup" having been disclaimed, the only effective part of the registered mark of the plaintiff is "TEA CITY". The plaintiff/respondent, therefore, prima facie, cannot claim exclusive right to use the words Super Cup by virtue of any alleged user. The appellant is marketing its tea as "Girnar Super Cup Tea" since 1995 and it is in the trade of manufacturing and marketing tea for the last about twenty years. The appellant has in its application stated that it has export contracts for export of tea under the trade mark "Girnar Super Cup Tea" with the device of cup and saucer in the name of its associated concern Girnar Exports and we feel that in case the impugned order is not stayed not only that the appellant would suffer monetary loss and loss of foreign exchange but it may also result in the loss of business, reputation and goodwill of the appellant which in our view cannot be compensated in terms of money. The appellant shall in our view suffer substantial loss in case the impugned order is not stayed.
(14) Appeal having already been admitted, as the same in our view needed consideration, we feel the impugned order should not be allowed to continue. We, therefore, stay the impugned order till the disposal of the appeal.
(15) Any observation made in this order will not have any effect on the decision of this appeal.
(16) Application stands disposed of.