China's most prestigious overseas English exam training school - Beijing-based New Oriental Education Group - was ordered by a court to pay 10 million yuan (US$1.2 million) in compensation for copyright and trademark infringement to the US-based Educational Testing Service (ETS) and the Graduate Management Admission Council (GMAC).

Yu Minhong, founder of the New Oriental Education Group discusses English study with two students at a Changchun bookstore.

The school was also required to stop copying Test of English as a Foreign Language (TOEFL), Graduate Record Examination (GRE) and Graduate Management Admission Test (GMAT) exam papers developed by ETS and GMAC.

The judgement was made over the weekend by the Beijing No 1 Intermediate People's Court after a trial that lasted about two years.

As the developer and sponsor of two widely recognized examinations that students from non-English-speaking countries are required to take before applying to universities in the United States, New Jersey-based ETS has registered the copyright of TOEFL and GRE test questions with US copyright authorities, and has registered "TOEFL" and "GRE" as trademarks in China, said the final judgement.

The Virginia-based GMAC, developer and sponsor of GMAT, has also followed the same procedures, the court confirmed.

"The legal rights of ETS and GMAC are protected by the Copyright Law and the Trademark Law of China," said the final judgement.

"I would like to express recognition and thanks, on behalf of ETS and GMAC, to the court for its verdict protecting the intellectual property rights of the two famous American educational organizations," Dan Pingyuan, the lawyer representing the two plaintiffs, told China Daily.

Xu Xiaoping, spokesman for the New Oriental Education Group, said that they would appeal to a higher court, although he believed the lawsuit would have no effect on students studying in his school.

ETS Seen as Being in Part to Blame

He said that 10 million yuan is a heavy fine, but that they are preparing to appeal to a higher court, since they hold that the court decision is "unfair."

He added that if the lawsuit is finally settled against the school and they have to pay the original fine, the school could "afford it," and would "manage to pay whatever the court orders it to pay."

"We will not be financially damaged by these fines," he told China Daily yesterday.

The court accepted the accusation from ETS and GMAC against New Oriental on copyright and trademark infringement in 2001 and the first hearings were held last year.

A statement by ETS said earlier that ETS initiated legal proceedings in an effort to protect its copyrights on its exam materials, which is also essential to the integrity of the examination system and the university admissions process. In no way is the lawsuit intended to penalize Chinese students but instead is an effort to protect them. Nor is this an attack targeted against the school or its websites. It is only the utilization of the rule of law to stop copyright infringement and piracy.

ETS also said that the school's behaviour would not cause ETS to abandon the China market for the US colleges, especially the technical ones "eager" to admit Chinese students.

Xu said he is regretful over the court decision, "New Oriental wants to make an apology for our mistakes in the past."

But Xu, a trustee of the group, emphasized that it was discrimination on the part of ETS that resulted in New Oriental's unauthorized use of teaching materials.

"In the past, ETS refused to publish testing materials on the Chinese mainland despite the demand from Chinese students who want to study abroad," he said.

In fact, ETS publishes materials in most countries where the tests are held. But, in China, which has the largest number of test takers, students have to buy the materials from ETS directly. This means they have to pay more for the books.

Xu said New Oriental has tried its best to communicate with ETS to get authorization to print TOEFL and GRE papers but has always been refused by the organization.

ETS gave its first ever publication permission only early this month, when it authorized the Beijing TideTime Group to publish TOEFL papers.

"We expressed our heartfelt welcome for this move, although ETS refused our request for such co-operation," Xu said.

New Oriental was also ordered by the court to hand in all illegal copies of ETS and GMAC materials and to publish an apology to the two American institutions in the Chinese newspaper Legal Daily.

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