【正文】 inding : “51. Further, I do not accept that the respondent has begun use of the marks in Hong Kong. Its history reveals that such trading undertaken by the respondent (and I include in that expression its subsidiaries) has been limited to the PRC. That its website has enabled enrolment from outside the PRC and that there may be enrolled some Hong Kong residents does not change things. Clients must open accounts in nominated banks in the PRC, and trading is conducted on exchanges in the PRC, not in Hong Kong at all.”33. The conclusion of the Court of First Instance was that if the respondent were to use the trade marks in the registrations in Hong Kong, that would inevitably amount to a deception and loss to the appellant.34. The judge went on :“… And further, the respondent as registered owner of the marks will be able to stop the applicant from brokering under its own name, as has been carried on by it and its predecessor for more than 30 thus in turn a substantial goodwill. Independent evidence (including that of Mr Lee) confirms what is selfevident.53. The introduction of the mark Ping An for Ping On reflected a cultural and economic shift which does not amount to the use of a new name. The Chinese version has remained unchanged.”30. With reference to criticisms of the evidence purporting to establish the appellant’s goodwill, the judge found : “47. … I do not accept that the applicant has not made out that it acquired a preexisting goodwill from Ping On amp。million.26. There was a change of name of the appellant in 2003, following acquisition of the controlling interest in the pany by “an established group known as the Baron Group”. The judge said :“13. The new management chose, with the approval of the HKSE and the Securities and Futures Commission (SFC) to change the name as recorded in both English and Chinese. The characters signifying “stocks and shares” were replaced by two characters meaning ‘securities’. In English the name became Ping An Securities Limited. Michael Sze (Mr Sze) who at the changeover became the applicant’s managing director, a position he holds to this day, adduced evidence to explain why. The characters translating to mean ‘securities’ described the function of the applicant in a more up to date way than the former ‘stocks and shares’ regarded now to be somewhat old fashioned. The change of the English version was to bring to the name the transliteration in Putonghua of the Chinese characters by which over the years the applicant and its predecessor have been known, to recognize the change of ownership of the applicant, but also the growing use of Mandarin or Putonghua in place of the Cantonese dialect in Hong Kong, particularly in professional and business circles.”27. After the change of name, the appellant continued to operate as before. The judge referred to the evidence of Mr Chan, a director and the one responsible for dealing accounts and operations of the pany, that its principal business included security trading in listed securities, debt securities, the organizing of IPO’s, the placing and underwriting of securities, nominee services and transfer of securities for a client list in Hong Kong which exceeded 3,000 …”16. The issue for determination therefore is whether, at 20 August 2003, use of the trade marks PING AN and平安by the respondent was liable to be prevented by virtue of the law of passing off. The appellant claims prior rights in unregistered names consisting of, or incorporating PING ON, PING AN and平安in its business and that of its predecessor in the provision of stockbroking and financial services.17. The elements of the tort of passing off relevant in this case are not in dispute. The plaintiff must establish a goodwill (in the country or region) in a business in the supply of goods or services distinguished by a name or mark that has been, or likely will be, damaged by conduct of the defendant that is misleading or deceptive to the public. No one is entitled to represent his goods or services as those of, or connected with, another whose goods or services are known in the market. These elements, as formulated by Lord Oliver in the wellknown JIF case Reckitt amp。 this was said to be in proof of the fact that the applicant had made numerous transactions on behalf of 1,253 clients in that month and those 191 sheets were illustrative of that fact.9. Exhibits “CMT9” and “STP17” add up to a total of 580 pages, produced for no other purpose than to illustrate the fact that the applicant had acted as broker in a number of transactions over the specified periods. These are hard facts over which there could have been no dispute. They are matters which could have been easily agreed between the solicitors. Moreover, those pages proved nothing。62 rule16, 35, 36, 38, 41 and 42 in the name of 中國平安保險(集團(tuán))股份有限公司 (“the Respondent”)andIN THE MATTER of an application by PING AN SECURITIES LIMITED (“the Applicant”) for a declaration of invalidity of the registration of Hong Kong Trade Mark Nos. 300065196 in Class 36 and 300065213 in Class 36 and/or for rectification of the Register of Trade Marks in respect thereof_____________________Between : PING AN SECURITIES LIMITED Applicant (Appellant) and 中國平安保險(集團(tuán))股份有限公司Respondent(Respondent)_____________________Court :Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ, Mr Justice Litton NPJ and Mr Justice Gault NPJDates of Hearing :22 and 23 April 2009Date of Judgment :12 May 2009J U D G M E N TMr Justice Bokhary PJ :1. I agree with the judgment of Mr Justice Gault NPJ and would therefore allow the appeal with costs here and below. Not in regard to the merits but in connection with the preparation of the papers, we indicated at the hearing that we would consider calling upon the appellant’s solicitors to show cause under Order this distorted the resu