( 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 chequer 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 packagings 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 suffi