1. ' MUHAMMAD AFZAL ZULLAH, C.J.---This appeal through leave of the Court arises out of a case of trade mark. The leave to appeal was granted as follows:-- "Respondent No,1 had sought registration of a trade mark comprising the word 'Kung Fu' in Urdu in class 7 in respect of agricultural implements. The petitioner had filed opposition to the registration of the aforesaid mark, on the ground that its trade mark 'King' has already been registered in 1961, and the same has been used by the petitioner in respect of its merchandise comprising agricultural implements in the same class since the year 1960, and that the mark applied for is identical with or closely similar to the petitioner's trade mark, with the result that there is likelihood of deception and confusion within the meaning sections 8(A) and 10(1) of the Trade Marks Act, 1940.
2. The Registrar of Trade Marks (respondent No,2) took the view that the mark sought to be registered phonetically and visually has no resemblance with the registered mark of the petitioner and that the word 'Kung Fu' was a common word known in China in respect of Karate type of wrestling. In this view of the matter respondent No,2 disallowed the opposition and granted the application of respondent No,1.
3. ' The appeal filed by the petitioner against the order of respondent No,2 having been dismissed by a learned Single Judge of the Sindh High Court by his judgment dated 19th September, 1988, the petitioners have come up with this petition for leave to appeal from the said judgment.
4. ' Learned counsel referred to the observations of Lord Parker reproduced in the impugned judgment in which tests were laid down in order to determine the question whether the two trade marks would lead to confusion in the following words: `You must take the two words. You must judge of them, both by their look and by their sound. You must consider the goods to which they are to be applied. You must consider the natural and kind of customer who would be likely to buy those goods. In fact, you must consider all the surrounding circumstances, and you must further consider what is likely to happen if each of those trade marks is used in a normal way as a trade mark for the goods of the respective owners of the marks'.
5. ' He. Submitted that in the light of the aforesaid tests also the mark applied for obviously creates a confusion as the words 'King' and 'Kung' in the two -larks are written in Urdu which bear striking resemblance with each other. So much so that the learned Judge has himself referred to the mark applied for as 'King Fu'. He made a grievance that oh,' learned Judge ignored the fact that the word 'King' in Urdu appearing in the two marks is identical in appearance and the next following word has been written as in the advertisement for inviting objections. He further submitted that the standard applied by the Registrar that the words 'Kung Fu' belong to the Chinese language and are, therefore, distinct from the word 'King' is not applicable in the present case, because the goods are marketed in that section of the society which is not educated and so discriminating,. In the submission of the learned counsel the onus of proof was, therefore, not discharged by the respondent No,1 that the mark applied for will not cause confusion. He has relied upon M/s. General Engineering Corporation v. M/s. Prince Industries (1988 C.L.C. 1991).
6. ' Opposing the petition learned counsel for the caveat or submitted that the two marks were phonetically different and there is no visual similarity between them. He, therefore, supported the orders of the lower forum and further submitted that this is a question of fact which stands conclusively determined.
7. After hearing the learned counsel we feel that the question whether in the facts and circumstances of this case the registration of the mark applied for by respondent No,1 was in consonance with the law and the well-settled principles for determining the question whether the mark was likely to deceive or cause confusion and whether the embargo contained in section 10(1) of the Trade Marks Act was attracted, require further examination."
8. ' Learned counsel for the appellant vehemently reiterated the points advanced and stressed at the time of grant of leave to appeal. Learned counsel for the respondent pointed out that the visual, phonetic and other representation including that of intent and content in the disputed trade mark "Kung Fu" is not such that the same would deceive or confuse the ordinary villager purchaser of the agricultural implements concerned. As according to him similar elements regarding the respondent's trade mark "King" as it is represented alongwith a monogram of a Crown on a small circular design, are totally different. While the appellant's trade mark represents 'King and Crown' perhaps referable to the British Crown; the respondent's trade mark refers to an expert in the Judo Karate game named 'Kung Fu'. This Art is of the Far East including China and Japan. Still when we wanted to test the intention of the respondent--whether he wanted to gain illicit advantage through mixing up of trade marks and designs thereof and asked him and his counsel to make the difference so pronounced so as to satisfy the learned counsel for the appellant also that no one should be confused about the two representations.
9. Despite complete assurance in this behalf the learned counsel for the appellant in the beginning hesitated to accept the offer but later on, on the direction of the Court he joined an exercise to achieve the maximum possible satisfaction for the appellant. On his suggestion the respondent and his counsel made certain changes in the writing, to make it 'Kung Fu Toka'. The respondents' side also introduced a picture of Mr. Kung Fu, the aforementioned expert in a small size about an inch in diameter. On the question from the Court: whether, the respondent was ready to increase the picture 3 times the learned counsel readily accepted it and stated that it would be enlarged accordingly. Two copies thus prepared were placed on the record of this Court. They have been signed by the Court Associate. The learned counsel for the appellant despite the aforementioned safeguards and assurances from the respondent's side insisted on acceptance of this appeal. On the other hand we felt completely satisfied that there were no reasons left for the appellant to be apprehensive, vis-a-vis, the alleged confusion.
10. ' After considerable effort we were able to discover that the learned counsel for. The appellant despite having felt that the arrangement was fair and just was afraid of his client that any fair statement made by him might annoy him and thus the counsel might incur his displeasure.
11. Learned counsel candidly stated so. However, he also while requesting that one out of 2 paper representations of the respondent's trade mark, prepared in Court should be sent to the Registrar respondent No,2 and that the picture should be ordered to be enlarged, was still afraid of his client, lest the latter might think that the counsel by implication had agreed to what has been stated above. Despite our assurance that a client has no such control over the conduct of his counsel in a situation like this the learned counsel visibly was afraid of his client. We cannot but deplore such a tendency on the litigant public, vis-a-vis, the management and control of their cases by their counsel, whom they appoint through properly constituted power of attorney wherein power to do and act as was expected of the learned counsel during the proceedings of this case, is specifically granted. We also felt very anxious on the strange attitude of the counsel who is not a novice and now has standing at the bar of several years. With these remarks this appeal is dismissed with the orders:--
(i) that the respondent's trade mark now stands changed to the representation made on papers produced by him now marked "AA & BB";
(ii) that the representation marked "AA" shall be placed on the record of the Registrar, respondent No,2;
(iii) that the picture in Mark-AA & BB shall be enlarged to its three times the present size. Thus consequentially the trade mark objected to by the appellant in this appeal stands substituted and modified by the afore described Mark-AA and BB. There shall be no order as to costs.