【文章內(nèi)容簡(jiǎn)介】 ished principles of the law of passing off, directives for the interpretation of European trade mark statutes. The Court of First Instance20. The matter was tried in the Court of First Instance before Deputy High Court Judge Gill Judgment of HCMP 2788/2004 dated 3 August 2006. who decided in favour of the appellant and made a declaration of invalidity in respect of both registrations. In his judgment, he reviewed the documentary evidence (there having been no crossexamination) against a formulation of the law of passing off taken from Kerly’s Law of Trade Marks and Trade Names, 14th edition, 15016 to the effect that nobody has the right to represent his services as those of somebody else, whereby prospective customers may be deceived. He added that whether there is misrepresentation and deception depends not on any preconceived formula but whether, on the evidence and surrounding circumstances, this can be made out in any given case.21. The judge went on to state :“ The claimant must show that on or by the relevant date the mark or marks had, within its country or region of activity, bee by user distinctive to it in the minds of those dealing in the claimant’s business. If such reputation is thus established, the effect is that the claimant acquires a quasiproprietory right to the exclusive use of the mark in relation to goods or services of that kind. Thus the use by another of that mark or one deceptively similar bees an invasion of that right, for it is likely to induce customers to buy from him and divert prospective business from the claimant.”22. The reference in this passage to “a quasiproprietary right to the exclusive use of the mark” was criticized in the Court of Appeal and strictly is not correct. There is no property in the mark though the goodwill attracted by the mark is a proprietary right. That, however, gives no exclusivity in the use of the mark but only the entitlement to restrain misrepresentation or deceptive use damaging to the goodwill.23. The judge accepted that, although incorporated in 1993, the appellant was entitled to rely on the business history of its predecessor, a partnership founded in 1970. That partnership engaged in the provision of financial services as sharebrokers and was a founding member of the Far East Stock Exchange and later a member of the Stock Exchange of Hong Kong Limited. It was registered originally under the name in Chinese characters of 平安股票公司and in English Ping On amp。 Company. “Ping On” is the transliteration of the first two characters in the Cantonese dialect and translates to mean “peace” and “peaceful”. The next two characters translate to mean “stocks and shares” and the final two mean “pany”. Due to the passage of time, records of performance of the partnership in the 1970’s and 1980’s were not available but particulars that were available for the following years demonstrate that the partnership acquired a substantial reputation and goodwill in Hong Kong in financial services having continuously provided those services since 1970.24. The judge then referred to the incorporation of the appellant in March 1993 under the name in Chinese characters平安股票有限公司. This is the same as the partnership name with the addition of two characters signifying limited liability. The English version of the pany name then used was Ping On Securities Limited. The judge found that the pany took over the operation of the former partnership, occupying the same office, employing the same dealers and staff and serving the same clientele who were given notice of the change of name.25. The judge recorded from the evidence that during the course of the following decade, the appellant undertook significant business for its clients and he referred to the records showing that in 1998, the pany turned over more than $7billion representing an ine of more than $22million.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 3,000names. In 2003 the turnover was $859million, by 2004 it was in excess of $2billion.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