【正文】 January 2008 CACV 291/2006.. The principal judgment is that of Rogers VP. Le Pichon JA agreed with that. Barma J agreed in part. The judgment of the Court of First Instance was reversed essentially on the ground that the evidence did not support the finding of a likelihood of confusion between the appellant’s business and the respondent’s business.36. The judgment of Rogers VP records that: “14. In order to understand the significance of the applicant being owned by the Baron Group, this court of its own motion undertook a brief internet search. The result of the search forms exhibit STP11 to the fourth affirmation of Michael Sze. The contents of that exhibit, namely copies of articles which had appeared on the ‘Webb Page’ would appear to show dealings that put the Baron Group in an unflattering light, to say the least. This court, therefore, considered it appropriate to draw to the parties’ attention what had e to the court’s attention as a result of attempting to understand the applicant’s own evidence in relying on its connection with the Baron Group.15. Naturally, an adjournment was sought. The parties were given an opportunity to file further evidence. Mr Michael Sze filed a further affirmation in which amongst other things he sought to criticise the writer of and proprietor of the Webb Page. The subject matter of that criticism would appear to be irrelevant as regards the articles in question or their import and somewhat tendentious in view of the newspaper article upon which the criticism was based.”37. On his assessment of the evidence, including the new evidence (also not the subject of crossexamination), Rogers VP emphasized the size and scope of the respondent’s business and the “smallness of size, if not insignificance, of the [appellant’s] business”. He considered that acceptance by the Court of First Instance of the explanation for the appellant’s name change from PING ON to PING AN was unsound. He said :“25. In the court below the judge accepted the reasons given by the applicant for the change of name from Ping On to Ping An. Given the fact that there was no evidence from the major shareholders of the applicant in relation to that and given the nature of the evidence at the time it was before the judge, I do not consider that that finding was one that was sound. Given the further evidence which has now emerged, that is a finding to which the applicant is clearly not entitled. The fact is that Ping An and Ping On are different. The only possible conclusion is that at the time the name was changed those in control of Ping On Securities Ltd knew full well about the respondent, knew that HSBC had made a major investment in it and was content that if there were to be confusion between its new name and that of the respondent that that should happen.”38. The conclusions on the essential issues in the case (with which Barma J agreed) in the judgment of Rogers VP should be set out in full as follows : “36. If one considers, therefore, the manner in which the applicant has traded in the past, the first matter which is apparent is that the name Ping On and Ping An and the characters平安have been used almost exclusively, if not always, as part of the name of the firm and the name of the pany. Despite the fact that massive documentation was exhibited in this case, it does not appear that there has been any, or giving the applicant the benefit of any doubt, any significant use of the words Ping On and Ping An and the characters平安on their own: they have always been used as part of the names of the firm and the pany. Furthermore, there has been no advertising as the regulations relating to the stockbroking industry do not permit it. As Mr Shipp pointed out the applicant has also always used the words and characters in conjunction with its own logo and, very frequently, in conjunction with reference to the Baron Group.37. Mr Shipp stressed in argument that whatever reputation the applicant had, it extended very little further than the 3,000 clients it had had over the years. In my view his assessment has the ring of reality about it. The applicant is a small stock broker with a very limited client base. Its reputation clearly extends little beyond that.38. In my view the scope for an action for passing off by the applicant by reason of the use of Ping An or the characters平安by the respondent as of the date of the application for the trade marks was not sufficient to render the trade marks unregisterable. If the trade marks were used by the respondent in a normal and fair way in respect of the services for which they were registered, I do not consider that there would be confusion between the respondent’s business and the applicant’s business. Apart from the extent of the applicant’s reputation, clearly the manner in which the securities trade is carried on and the manner in which the respondent as well as applicant traded would militate against any confusion. In my view there is no scope for those in respect of whom the applicant has a reputation being deceived by a normal and fair use by the respondent of its marks. The distinction between the businesses would at once be obvious even to the proverbial ‘moron in a hurry’. Whether or not any potential clients of the applicant might make enquiries as to whether the applicant were connected with the respondent, which would be a reverse type of passing off, would be a different question but again, I do not consider that there would be a sufficient likelihood that the businesses would be confused. In this respect, it is not impertinent to point。 this grew by 2003 to RMB67 billion.19. In addition to selling insurance the respondent also operates a trust business through a subsidiary called for short Ping An Trust which it acquired in 1996. A subsidiary of Ping An Trust called Ping An Securities was founded also in 1996. It undertakes services in stock and bond brokerage, securiti