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New Oriental School Appeals Damage Award

Hearings began Wednesday on the appeal of Beijing-based New Oriental School, an extremely popular examination prep school for people hoping to study abroad.

Last September, the Beijing No. 1 Intermediate People's Court ordered New Oriental to pay 10 million yuan (US$1.2 million) in damages for copyright and trademark infringement to the Educational Testing Service (ETS) and Graduate Management Admission Council (GMAC), both of the United States.

The first-instance judgment was made after a trial lasting more than a year.

New Oriental filed an appeal with the Beijing High People's Court and a hearing was held Wednesday, but no decision has yet been handed down.

During Wednesday's hearing, New Oriental admitted that it published the Test of English as a Foreign Language (TOEFL), Graduate Record Examination (GRE) and Graduate Management Admission Test (GMAT) developed by ETS and GMAC. However, it argued, this did not violate the copyright and trademark right of ETS and GMAC.

"Test papers are not within the range of protection afforded by the Copyright Law of the People's Republic of China," argued Li Qi, the lawyer representing New Oriental.

Zhou Qiang, the lawyer for ETS replied that, "Test papers belong to works and their copyright should be protected according to the Berne Convention for the Protection of Literary and Artistic Works, of which China is a member country."

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

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

"TOEFL, GRE and GMAT Copyrights had never been challenged in any country or region until New Oriental's illegal behavior," Zhou said.

Industry and commerce authorities in Beijing confiscated thousands of illegal copies of ETS and GMAC test papers produced by New Oriental in 1996, 1997 and 2000, sources said.

ETS senior vice president Stanford Von Mayrhauser said Wednesday that New Oriental's appeal had absolutely no grounds.

Mayrhauser, together with two ETS staff, arrived in Beijing three days ago.

He said there was no hope of ETS cooperating with New Oriental.

Tidetime became ETS' partner on the Chinese mainland in September last year to publish TOEFL and GRE papers.

Sources with New Oriental declined to comment Wednesday.

(China Daily April 29, 2004)

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