A party which fails to respect the confidential nature of information received at a hearing shall be liable for damages under the provisions of Article 154 of the Code of Obligations, (Official Gazette No. 29/78, 39/85, 2/89, 37/89, 1/1991 – 1).

There is no explicit provision in national legislation which would provide for the exception as described in Article 44.2 of the TRIPS Agreement. Therefore, in any such case, most probably a very rare case, Article 44.2 of the TRIPS Agreement may be directly applicable.

There is the same court as indicated in Slovenia's responses to the Checklist of Issues on Enforcement, i.e. the Circuit Court of Ljubljana which has the authority to act in accordance with the provisions of Article 47 of the TRIPS Agreement. Until the provisions of this Article become part of the new Law on Industrial Property, Article 47 of the TRIPS Agreement may be directly applied.

Public authorities and officials are liable, under the general rule for damages, whenever their actions were taken or intended in bad faith (Article 172 (1),(2) of the Code of Obligations). This provision implies the applicability of Article 48.2 of the TRIPS Agreement.

Preservation of evidence, whenever a danger of its destruction exists, is deemed to be an urgent case. The authorities have followed this practice regularly in all cases concerning copyright and trademark infringement.

In the field of patents, trademarks, industrial designs and topographies of integrated circuits, the ownership is established by submitting the corresponding official document issued by the Slovenian Intellectual Property Office. In the field of copyright and related rights and protection of undisclosed information, the ownership is established by providing a sample of the relevant work and/or information for which infringement is claimed.

In principle, both judicial and administrative procedure is possible, the latter, however, only in the area of pirated copyright goods (Article 173 of the Copyright and Related Rights Act). Explicit provisions in the field of industrial property will be included in the new Law on Industrial Property, which may be adopted in 1998.

There is no quantification in this respect in the relevant national legislation. A decision what constitutes a de minimis import is judged by the rule of reason for each case individually.

The intent element is a legal threshold, which draws a distinction between a copyright infringement as a criminal act (intent existing, Article 159 of the Criminal Code) and a copyright infringement as a misdemeanour (intent not existing, Article 184(1) of the Copyright Act). The term "substantial material gain" is defined as five average monthly net salaries (Article 126(13)2 of the Criminal Code), i.e. an income amounting to a total of approximately US$2 720.

Slovenia's response to question 24 of the Checklist of Issues on Enforcement indicates that the goods infringing the trademark shall be confiscated on an obligatory basis.

The answer to this question is given in Slovenia's response to question 24 of the Checklist of Issues on Enforcement.

The analysis covers civil cases, commercial disputes and criminal cases where the legal action, motion and/or indictment were filed in the period from 1 January 1996 until 31 December 1997. Thus the data on judgments do not cover the cases filed before 1996, although the respective judgments were pronounced in 1996 and/or 1997. Regarding the cases filed in 1996 and 1997, the analysis, however, excludes the judgments passed after 31 December 1997. Accordingly, the analysis in question cannot provide a definite answer to the question about the final result of all proceedings dealt with in the courts. This will only be possible upon completion of all these proceedings. Hence, the analysis in question could only yield an "interim result" with reference to the situation as of 31 December 1997. Number of civil cases and commercial disputes In the years 1996 and 1997 District Courts in the Republic of Slovenia received altogether 143 legal actions in the field of intellectual property, whereof 140 suits referring to violation of intellectual property right, one suit to patent nullity and two suits to trademark cancellation. Further details on legal actions arising out of violation of intellectual property rights are as follows: - Violation of copyright and related rights 97 - Patent violation 9 - Trademark violation 14 - Industrial design violation 1 - Violation of geographical indications – - Trade name protection 8 - Unfair competition 11 - Violation of business secrecy – - Total 140 Number of requests for temporary orders (and other security measures) Among the cases referred to in Chapter 2 there were 24 cases subject to the request of a temporary order. Further details on requests for security measures are as follows: - Request for prohibition of further violation 16 - Request for requisition of objects of violation 3 - Other types of security measures (security of evidence etc.) 5 In the period in question there were 21 independent requests for security measures (excluding simultaneously filed legal actions) submitted to County Courts. Further details on requests for security measures are as follows: - Request for prohibition of further violation 18 - Request for inventory of objects of violation 4 - Request for custody of objects of violation 3 - Request for requisition of objects of violation 5 - Other types of security measures (security of evidence etc.) 3 Accordingly, in the years 1996 and 1997 there were altogether 45 requests for temporary orders submitted to the courts in the Republic of Slovenia. Further details on requests for security measures are as follows: - Request for prohibition of further violation 34 - Request for inventory of objects of violation 4 - Request for custody of objects of violation 3 - Request for requisition of objects of violation 8 - Other types of security measures (security of evidence etc.) 8 In certain cases there were simultaneous requests for several security measures. Therefore the sum of individual types of requests exceeds the total number of cases. The total number of cases relating to the violation of intellectual property rights is 164 (140 suits before District Courts and 24 independent requests for security measures before County Courts). However, the actual number of violations brought before Courts ranges between 140 and 164. As a matter of fact, in some cases the same violation is first a matter of independent request for security measures and subsequently a matter of legal action. Result of civil proceedings and commercial disputes Out of 140 proceedings started in 1996 and 1997 as a result of legal actions referring to violation of intellectual property rights there were 34 legal actions completed at the first instance court by 31 December 1997. Further details are as follows: - Request for legal action partly or full approved 16 - Judicial settlement 4 - Judgment based on recognition 2 - Withdrawal of legal action 8 - Rejection of legal action 2 - Refusal of request for legal action 2 In 22 cases where the defendant was imposed an obligation (under judgment, under judgment based on recognition or under judicial settlement) the sanctions were as follows: - Final prohibition of further violation 2 - Indemnity 18 - Other ? The reason for the low number of prohibitions and a high number of indemnities probably lies in the fact that most of the civil proceedings only concerned indemnities (almost only copyright disputes) because it was preceded by a previously issued and considered temporary prohibition of violation. In the cases at the first instance completed with a judgment, which imposed on the defendant the payment of indemnity, the sum of all such imposed amounts totals SIT 7 494 070.00 (principal without interest). The statistics cover only the cases which were completed at the first instance by 31 December 1997. Accordingly, it involves only the disputes that were completed relatively quickly (in less than two years or even within a few months upon filing of the legal action). On these grounds it could be presumed that such statistical data may predominantly cover rather simple cases and those with a lower value in dispute. Due to the short time interval between filing of legal actions and the last considered date of the judgment some more real analysis of results of civil proceedings and commercial disputes will only be possible upon completion of the remaining 75.71% of proceedings (which are not necessarily comparable by value of dispute and sanctions with those which could already be included in the analysis). Out of the 140 civil cases and commercial disputes filed in 1996 and 1997 there are two cases completed with a final judgment of the Court of Appeal. The number of finally completed cases shall also include at least those which have been completed through judicial settlement. The result of the proceedings at the second instance is not real for the same reasons as applicable to the cases completed at the first instance (short interval between filing of the legal action and the judgment of the Court of Appeal). Results of interlocutory proceedings Out of 45 requests for issue of a temporary order and/or any other interlocutory measure filed in 1996 and 1997, Slovene Courts passed their judgments by 31 December 1997 in 41 cases. By 31 December 1997, there were in total 24 final decisions on requests for interlocutory measures (i.e. completed proceeding against debtor's objection at the first instance as well as the proceeding at the second instance relating to the appeal of one of the parties). First instance judgments on requests for interlocutory measures (out of 41 cases): - Issue of temporary order regarding the prohibition of violation and/or requisition of the objects of violation 33 - Issue of decision on security of evidence 1 - Refusal of request 7 Subsequent treatment of temporary orders: - Temporary order remaining in force as final 22 - Abrogation of the order relating to the debtor's objection or appeal 9 - Absence of judgment by 31 December 1997 2 Out of 41 requests for issue of a temporary order issued in 1996 and 1997 and already final as of 31 December 1997, the figures were as follows: - Temporary orders issued at the first instance 33 (80.5%) - Temporary orders issued as final 22 (53.7%) Differently from the results of civil proceedings and commercial disputes, the data on security measures may be much more real. Since the decision-making about temporary orders is much faster, the analysis of a large majority of requests for judgments (in particular at the first instance) may already be known. Criminal proceedings As the analysis is supposed to cover only the period when the TRIPS Agreement was already in force in Slovenia (i.e. after 1 January 1996) and because it is supposed to cover only judicial proceedings and the corresponding results by 31 December 1997, the data on criminal proceedings will be applicable only with much restriction. As a matter of fact, a regular criminal proceeding is first preceded by denunciation, follows request for investigation (public prosecutor), investigations and only then the indictment. The date concerning the number of persons in the Republic of Slovenia which are treated as suspects or accused persons in these pre-criminal phases are not available to criminal courts. The same applies to possible requisitions of objects of the reproached criminal act imposed before the requests for legal actions have been filed. On these grounds it is only possible to ascertain that in the relevant period there were eight indictments filed with reference to the criminal acts reproached pursuant to Articles 158, 159, 238/1 and 309/3 of the Penal Code. No judgment has been passed in any of the criminal cases. The data on results of criminal proceedings related to the acts committed before 1 January 1996, however, do not fit into this analysis.

Please see the answer to follow-up question 1 from the United States above.

First of all it is necessary to reply to the part of question 1 regarding precedence of ratified and published international conventions over Slovak domestic law in case of any contradiction. In this respect it must be stressed that in accordance with Article 11 of the Constitution of the Slovak Republic only the conventions regulating human rights have direct precedence before law, so that in cases where an international convention provides for the rights of the above-mentioned character to a broader extent than the domestic law, and also in cases where there is any direct contradiction between any convention and the law, the court can apply directly the international convention. Pursuant to Article 125 (e) of the Constitution of the Slovak Republic other international conventions also have precedence when the Constitutional Court makes decisions regarding the conformity of generally binding legal regulations with international conventions proclaimed in the manner provided for the promulgation of laws. If the Constitutional Court makes a decision with respect to the non conformity of the law with any international convention, this law, or its relevant part, ceases to be in force after the period of six months if, in the meantime, it has not been amended by the Parliament according to the decision of the Constitutional Court. As a result of the above, any international convention other than the convention on human rights has precedence over the domestic law, but this precedence cannot be applied directly, rather only after the above-mentioned process in the Constitutional Court. The TRIPS Agreement as a part of the Final Act was ratified by the Parliament in December 1995 and it entered into force as of the day of the approval. From this date the provisions of the TRIPS Agreement were incorporated into the national legislation (e.g. trademark law). The TRIPS Agreement is available in the Slovak language to all relevant state administrative bodies and to the business community through various publications. Official publication of the translation of the TRIPS Agreement is expected in the near future, however this is considered as a strictly technical issue.

The recodification of the Code of Civil Procedure of the present Law No. 99/1963 including amendments is in its final stages. At present the review of the proposed amendment has been concluded by the expert institutions recommended by the European Commission. The conclusions of the recommendations have not yet been fully analyzed by the Ministry of Justice as they are being translated into the Slovak language. In general it can be said that the Slovak Code of Civil Procedure, especially after its amendment in 1992, complies with the criteria of Part III of the TRIPS Agreement. It is necessary to stress that the length of legal proceedings which, following the changes of the political system, was too long especially regarding commercial matters, cannot be essentially influenced by legal measures. The improvement in this matter is contingent, above all, on the consolidation of economic and partly political life of the society. In terms of time horizon of the recodification of the Code of Civil Procedure, according to the information from the Ministry of Justice it is expected that the proposal will be submitted in its final phase of the legislative process in the Parliament during 1998. Regarding the recodification of the Criminal Law and Criminal Code the legislative work is in a more advanced stage and the beginning of the final phase of the legislative process in the Parliament is expected to be completed in the course of this year. In accordance with the Criminal Law, in cases where the court makes a decision about commitment of a criminal act pursuant to Sections 150 through 151 of the Criminal Law (protection of industrial property rights, which also concerns copyright and related rights) the punishment of forfeiture of a thing, or in prior stages, seizure of things serving for the perpetration of a criminal act, can be imposed, by means of which Article 46 of the TRIPS Agreement can be applied to a certain extent.

The procedures enforcing industrial property rights are secured and executed by the Industrial Property Office of the Slovak Republic and by ordinary courts within their given competences. Within the jurisdiction of the Court of Appeals (High Court) is also the examination of decisions of the Industrial Property Office as the central body of the state administration. The proceedings before the Office are generally accessible both from the viewpoint of the procedure, as there are not any special requirements imposed regarding communication with the Office, as well as the proceedings before the Office. In proceedings the Office gives priority to matters concerning disputes of parties in legal proceedings or international applications for trademarks. The same applies in case of proceedings before the court where the possibility of not complying with the time limit or unwarranted delays can be solved by submitting the proposal for the provisional measure, which is ordered by the court according to Section 75, 2 of the Code of Civil Procedure, within 30 days of the day of submitting the proposal for the provisional measure. The enforcement of rights through the above-mentioned procedures must be in conformity with good morals or commercial practices. The prevention of the creation of obstacles to legal trade as well as of the infringement of rights is the subject of the amendment provided by Sections 3 through 10 of the Law on Protection of Economic Competition No.188/1994 Coll. in which case the competent body is the Anti Monopoly Office of the Slovak Republic.

The court can compel everybody, including a party to the proceedings, to produce a document or an object as evidence (Section 129, 2, Code of Civil Procedure). The court may also order the examination of a thing in the place where it is located (Section 130). The court may also hear the parties to the proceedings as witnesses (Section 131). Disobedience of the court’s order can be sanctioned by imposing a penalty several times in order. According to Sections 35, 37 and 38 of the Law on Civil Procedure an administrative authority also has similar jurisdiction. The examination of submitted evidence is at the court’s discretion. In cases where the plaintiff partially lacks evidence the court can also take into consideration and, for the plaintiff’s benefit, examine circumstantial evidence and, in extreme cases, also deal with the question of the trustworthiness of the party to the proceedings and decide for the plaintiff’s benefit but only if the opposing party does not rebut evidence produced by the plaintiff. In specific cases the law deals with the supposed lack of evidence of the injured party by means of rebuttable legal presumptions as, for example, provided by the patent law in Section 13, 2 of Law No. 527/1990 Coll. as follows: "If the patent is granted to a process the rights to this patent are extended to the products obtained directly by a patented process, when identical products are considered to be obtained by the procedure of protection if it is not proved otherwise". The court then can require any person to submit documents, or objects, or it can request this person to testify regarding the facts proposed by a party to the proceedings if this party is not capable of producing evidence. The protection of official (State) and professional secrets is provided by Law No. 100/1996 Coll. According to Section 3, 1, a professional secret is information or a thing connected with an activity of a State body, community or other legal entity indicated in the list of facts presenting the subject of a professional secret of a central body or community which, with respect to its importance, must be protected against disclosure, misuse, damage, destruction, loss or stealing. Every State body makes a list of official secrets whose release and deposit is published in the Collection of Laws. In the case of the Industrial Property Office the subject matter of its official secrets are considered to be an invention, utility model, industrial design, and topography of semiconductor products when an applicant or right holder requests secrecy. In such cases the treatment of the documentary material and access to it are the subject of a special protection regime in accordance with the law. The same procedure is applied in a legal proceeding. A further category is trade secrets, and as such production secrets should be considered. With regard to the above-mentioned the protection is provided by the Commercial Code No. 513/1991 Coll. Section 17 of the Commercial Code defines trade secrets as follows: "The subject matter of the rights which belong to an enterprise are also trade secrets. Trade secrets are made up of all facts of trade, production, or technical nature connected with an enterprise, and which have real or at least potential material or non material value, and which are not generally accessible in trade circles, and should be officially secret if an entrepreneur so wishes and he himself in an adequate manner secures their secrecy". According to Section 20: "The entrepreneur is entitled to legal protection against breach or jeopardy of the right to trade secret as against unfair competition." The breach of trade secret is defined in Section 51 as follows: "The breach of trade secret is an action by which a person unlawfully states, reveals to another person, or for himself or for another person makes use of a trade secret (Section 17), which can be used in competition and about which he obtains knowledge in the following manner: "(a) The secret was confided to him or it became accessible in some other manner (e.g. from technical documents, instructions, drawings, models or designs) based on an employee relationship with his competitor, or on the basis of some other relationship with the competitor, or in the execution of his function to which he was called by the court or some other body, "(b) by his own action or another person’s action which is contrary to law." From the quoted part of Section 51, a) and b), the obligations of third parties in relation to a trade secret are evident, albeit very generally. For the purpose of the proceedings before the Anti Monopoly Office the obligations of the third persons are defined in Sections 15 and 16 of the Law on Protection of Economic Competition No. 188/1994. In Section 15 it is provided: "Entrepreneurs are obliged to submit to the Office the required documents and information, to comply with examination of these documents and information and to enable employees of the Office to enter all objects, premises and means of transport of entrepreneurs". In Section 16 it is provided: (1) "The documents and information obtained by the Office from entrepreneurs of the bodies of the State administration and communities can be used only for the purposes for which they were requested." (2) "The employees of the Office as well as the persons commissioned to fulfil the tasks which belong to the competence of the Office are obliged to adhere to secrecy regarding the facts making up trade secrets, about which they obtained knowledge when fulfilling the above-mentioned tasks." The last category represents confidential information, i.e. the facts which do not meet the criteria of an official, professional or trade secret but there is a rational and socially acceptable reason for their confidential treatment. In general, this category is not regulated by a specific law. However, some norms of procedural character regulate the obligations of the third parties (especially of the State authorities) in relation to confidential information. The above-mentioned norms are Sections 44 and 124 of the Code of Civil Procedure, Section 23 of the Law on Civil Procedure No.71/1967 Coll., Section 4 of the Decree of the Ministry of Justice Regulations of Procedure for District and Regional Courts No.66/1992 Coll.

This question was partly answered within the answer to question 3. On the basis of the proposal of a party the court can order preliminary measures in cases where statements of a party regarding presented information appear reliable while it is not necessary to hear an opposing party. In principle, the court renders an opportunity to an opposing party to state its own opinion regarding the proposal for a preliminary measure whose force is time limited, or limited by a final decision. A party to a proceeding is obliged to appear before the court in person or through a representative and he can be forced to do so by means of fines or be brought before the court by the police. This question was also partly answered in the answer to question 4. With regard to the TRIPS Agreement the provision of Section 76, 1 of the Code of Civil Procedure is important according to which the court can impose an obligation on a party by means of a preliminary measure not to manage, administer or handle things or rights, to do something, to abstain from something, or to countenance something, to deposit a monetary sum or deposit a thing with the court, etc.

In accordance with Section 26, 1 of the Law on Trademarks No. 55/1997 Coll. the trademark holder can request anyone to refrain from the use of his trademark or a sign confusingly similar to his trademark for identical or similar goods or services and may request that thus marked items are withdrawn from the market. Similar rights are granted mutatis mutandis to holders of other subjects of industrial property. The court can forbid the use of an identical or confusingly similar mark for identical or similar goods or services (this limitation does not concern well-known trademarks), and order the disposal of such goods outside the channels of commerce. The provisions permitting orders for the destruction of infringing goods are currently under consideration with respect to their compatibility with the Constitution. At present such procedure is possible only in cases where it is established that a criminal act was committed then, as has been mentioned above, a body active in criminal proceedings can make a decision regarding seizure of a thing which serves to commit a criminal act and the court can order, among other things, forfeiture of a thing. The specific amendment in this respect is expected in the recodification of the Customs Law, especially in relation to protection from infringing goods at the border.

Preparation of the special regulation on border measures relating to the protection of intellectual property rights is expected to begin in the year 1998 with the aim to finish the legislative process and to adopt this law in the following year.