【正文】 billion.28. There was evidence from Mr Henry Lee who has 16 years experience in the securities and financial service sector in Hong Kong. He has no connection with the appellant. He described the appellant as one of the veteran securities panies in Hong Kong, more often than not referred to by brokers and others who trade as平安, PING ON or PING AN. The appellant is the only licensee registered as using those names in relation to regulated financial services in Hong Kong.29. On that evidence, the judge made these express findings : “52. The applicant has by acquisition and use in its own name had the use of the marks ‘Ping On’ and ‘平安’ in engaging in financial services in Hong Kong. Its predecessor was a founding member of the FESE. Continuous trading since then has resulted in a substantial turnover and client base。16, 35, 36, 38, 41 and 42 in the name of 中國平安保險(集團)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)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 Ordermillion.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 Company, and benefited thus from its 20John Yan SC, with admirable restraint, submitted that the irregularity had cast a shadow of prejudice over the proceedings。 Colman Products Limited v. the Borden [1990] RPC 341, 406, [1990] 1 All ER 873, 880., have been repeatedly relied upon. Having said that the questions which arise are, in general, questions of fact, he said : “The law of passing off can be summarised in one short general proposition, no man may pass off his goods as those of another. More specifically, it may be expressed in terms of the elements which the plaintiff in such an action has to prove in order to succeed. These are three in number. First, he must establish a goodwill or reputation attached to the goods or services which he supplies in the mind of the purchasing public by association with the identifying ‘getup’ (whether it consists simply of a brand name or a trade description, or the individual features of labelling or packaging) under which his particular goods or services are offered to the public, such that the getup is recognised by the public as distinctive specifically of the plaintiff’s goods or services. Second, he must demonstrate a misrepresentation by the defendant to the public (whether or not intentional) leading or likely to lead the public to believe that goods or services offered by him are the goods or services of the plaintiff. Whether the public is aware of the plaintiff’s identity as the manufacturer or supplier of the goods or services is immaterial, as long as they are identified with a particular source which is in fact the plaintiff. For example, if the public is accustomed to rely on a particular brand name in purchasing goods of a particular description, it matters not at all that there is little or no public awareness of the identity of the proprietor of the brand name. Third, he must demonstrate that he suffers or, in a quia timet action, that he is likely to suffer damage by reason of the erroneous belief engendered by the defendant’s misrepresentation that the source of the defendant’s goods or services is the same as the source of those offered by the plaintiff.”18. In the context of a challenge to trade mark registrations, there may be no actual conduct of the defendant at the