About ILPFTo Join ILPFWorking Groups and PublicationsMember ResourcesEventsHome



  Upcoming Events
  Archived Events


Jurisdiction II: Global Networks/Local Rules

September 11-12, 2000
San Francisco, CA

Domain Name conflicts, Brazilian Jurisdiction, Consumer Law and the Impact of Alternative Dispute Resolution Mechanisms

Ronaldo Lemos
Suchodolski Advogados Associados, Brazil
ronaldo.lemos@uol.com.br


Internet in Brazil is growing exponentially, not only in regard of the number of users but also in regard of the increasing variety of services on-line. Brazilian courts have begun to feel such growth, especially because actual litigation regarding Internet activities has also increased. Litigation cases which are already considered usual in other jurisdictions, such as domain names conflicts, are becoming more common in Brazil, demanding a consistent response on the part of the courts.

However, when dealing with such conflicts, some questions are still notably uncertain. In this article, I will try to determine some deficits of Brazilian law in a world-encompassing electronic environment and try to evaluate how Alternative Dispute Resolution mechanisms can help in resolving such deficits.

The following deficits are to be considered in this article1:

  1. the lack of specific statutory provisions or consistent administrative policies regarding domain names conflicts, even when trademark-conflicts are involved;
  2. jurisdiction peculiarities in Brazil, especially in regard of the impact of the Brazilian Consumer Code to international electronic commerce.

In section (a) panorama will be traced about how domain name conflicts have been conducted in Brazil, making reference to some of the most important cases brought before Brazilian Courts. Moreover, it will be considered the impact of the implementation of the UDRP over Brazilian jurisdiction and how such mechanisms may be useful reducing both institutional and statutory deficits.

Section (b) brings a brief description about jurisdiction rules in Brazil, especially in regard of electronic transactions. Such section also considers the impact of consumer protection to jurisdiction matters and the criteria for determining applicable law, as well as the possibility of choice of law in Brazil. Finally, a brief prognostic about the potential impact of ADR on actual and potential litigation related to Internet use under Brazilian jurisdiction.

a) Domain Name conflicts in Brazil

Brazilian law presents today a significant statutory deficit in regard of domain name conflicts. Such conflicts are mainly regulated administratively, but not statutorily. The administrative entity responsible for coordinating the attribution of domain names and numbers in Brazil under the ccTLD ".br"is the Internet Managing Committee, created by the Ministry of Communications and the Ministry of Science and Technology2 in 1995. Besides its role to coordinate domain names and numbers in Brazil, the Internet Managing Committee, as an administrative entity, is also responsible for issuing non-binding recommendations regarding Internet administration in Brazil.

The Committee delegated its attributions regarding domain names and numbers to another administrative entity named FAPESP (Research Support Foundation of the Estate of Sao Paulo), a research institution whose previous attributions were basically to develop academic research in Brazil by means of the granting of scholarships. With such new attributions, FAPESP became not only the entity responsible for assigning IP numbers and domain names (the registry), but also the sole registrar in Brazil of ccTLD's ".br"3. FAPESP's registrar page can be found at "www.registro.br".

The main rules under Brazilian law specifically relating to domain names in Brazil are set forth by Administrative Rulings of the Internet Managing Committee. Accordingly, Administrative Ruling No.1, dated April 15, 1998, in its article 1 and respective paragraphs, provides as follows4:

Article1. The domain name registration shall adopt the principle that the right to the domain name shall be granted to the first requiring party complying, as of the requirement, the requisites to the name registration, according to the conditions described under this resolution and its annexes.

First Paragraph. In case the requiring party does not comply with the requisites to the name registry, the requirement shall be considered ineffective and the domain name shall remain free to be registered by another requiring party complying with the requisites for registration.

Second Paragraph. The requiring party is responsible for the adequate choice and use of the domain name required, and for compliance with the rules set forth in the Resolution and its respective Annexes and with the rules provided together with the documentation for requirement of the domain name.

Third Paragraph. The requiring party is entirely responsible for the choice of the domain name and its adequate use, and, as of the request for registration, holds harmless the Internet Managing Committee and any other registrar, of any liability for any sort of damages arising out of the inadequate use, being the requiring party exclusively liable for any judicial or extra-judicial proceedings resulting from the violation of rights or damages caused to third parties5.

As per the above, like in most countries, Brazil adopts the principle of "first come, first served". Moreover, responsibility for verifying whether a request for registration of a certain domain name may imply a violation of third parties rights lies upon the requiring party. Neither the registrar nor the Internet Managing Committee are legally compelled to exercise any sort of supervision or previous analysis to determine whether a certain domain name would imply in any sort of violation of third parties rights.

Additionally, other substantial provisions regarding domain names under Brazilian law are provided by the Annex I of the aforementioned Resolution 1 of the Internet Managing Committee. According to article 2 (III) (b) of such Annex:

Article 2. The name chosen for registration must:

III - be available for registration. Being available for registration means:

(b) a name whose registration cannot be granted. A name whose registration cannot be granted consist, but is not limited to, obscene words; names reserved by the Internet Managing Committee and by FAPESP for that purpose, as they represent pre-defined terms on the Internet, like the word "Internet" itself; names capable of confusing third parties, such as names representing well-known or reputed trademarks when such names have not had its registration previously required by the respective person or entity entitled to do so; Abbreviations of the names of the Estates, Ministries etc6.

The article above administratively sets forth that domain names of "well-known" or "reputed" trademarks shall be considered as "names whose registration cannot be granted". However, considering the abovementioned provisions of Resolution 1, article 1, the registrar itself is not responsible for exercising control over the domain names whose registration is requested. In practice, the Brazilian registrar (FAPESP), following the provisions of Resolution 1, would only deny registration for approximately 200 trademarks certified as "notorious" by the Brazilian National Institute of Intellectual Property (INPI), responsible for patents and trademark registration in Brazil. This has been the only measure objectively adopted in regard of exercising a certain control over the request for domain names by the registrar. Consequently, like in many other countries in the world, a substantial number of abuses have occurred, and illegitimate registration of domain names has been considerable in Brazil.

Despite some recent discussions about establishing a more comprehensive cooperation between FAPESP and INPI, and even a proposal by the Brazilian Association for Intellectual Property7 (ABPI) to create an administrative forum to expedite domain name disputes, an objective policy is still to be proposed in regard of the protection of legitimacy of domain names registration in Brazil.

Generally speaking, the few measures adopted regarding domain name conflicts are insufficient to provide certainty and objective criteria to resolve conflicts with domain names, especially if considered the number of trademarks and domain names registered in Brazil8 In this path, Brazil is the 4th country in the world in regard of the number of registered trademarks, with more than 80.000 trademarks registered under the INPI (National Institute of Intellectual Property). Cf. INPI, MACHADO, Jorge statements (President), in www.rnp.br/ompi/resumo-cg.html. Moreover, Brazil is the 8th country in number of registered domain names. Each month, approximately 4.000 new registration requests are processed. Cf. Internet Managing Committee, GETSCHKO, Demi, in www.rn.p.br/ompi/resumo-cg.html. All information as of February, 1999. Moreover, the situation is aggravated by the fact that when a conflict about a domain name is brought before the courts, such lack of specific statutory or administrative provisions leads to a prominent level of uncertainty. Since courts cannot rely in any objective criteria for resolving domain name conflicts, the outcome of judicial decisions in Brazil may sometimes be inconsistent. Some recent cases are presented below in order to illustrate such scenario.

The first significant case regarding domain names in Brazil occurred in 1998, and involved American On Line (AOL) and a local ISP based in the city of Curitiba, southern region of Brazil. The Brazilian ISP suggestively named "América On Line Telecomunicações Ltda." registered the domain name "www.aol.com.br". When AOL started its Brazilian operation, they tried to obtain their domain name largely used worldwide under the ccTLD ".br" by means of negotiation with the Brazilian ISP. However, after 8 months, the negotiations were frustrated, and AOL decided to bring the case before Brazilian courts.

The first decision attained was favourable to AOL and the first instance court granted an injunction putting the domain name www.aol.com.br on hold. However, the second instance Court, namely, the 4th Federal Regional Tribunal, revoked the injunction granting the domain name use back to the Brazilian ISP. The judicial battle is still pending, but the Brazilian provider has been successful in asserting its use of the domain name.

AOL's claim was asserted on the grounds of trademark protection. The trademark "AOL" had been previously registered by the American provider before the Brazilian National Institute for Intellectual Property (INPI). However, the court decided, in short, that a registered trademark does not imply domain protection in Brazil and that trademarks and domain names are subject to distinct protections9. Even though the case is still pending, it clearly demonstrates that the Brazilian courts relied on a very poor argument in order to deal with the domain name conflict.

Despite this paradigmatic case, the situation seems to be changing before the Courts. Other recent cases have lead to different results. Another Brazilian court located in Belo Horizonte, southeastern part of Brazil, have granted an injunction in regard of the domain name www.asenna.com.br, relating to the famous Formula 1 racer Ayrton Senna. The court based its decision on the assumption that domain name use by an illegitimate illegitimate party could lead Internet users to be confused and additionally, the Court decided that the defendant intention was to take advantage of the popularity of the name Ayrton Senna in Brazil. Another dispute involving the use of the domain name www.ayrtonsenna.com.br was decided on the grounds of trademark protection. Considering that Ayrton Senna is a registered trademark in Brazil, the court granted an injunction putting the domain name on hold while the case is still pending.

Finally, it is important to note that in every domain name cases occurred in Brazil, the courts have denied all the efforts to render the Brazilian registrar liable for granting the domain name registration, being such decision compatible with the international practice of limiting the liability of the registrar in regard of domain name violations.

The examples above demonstrate an initial change on the part of Brazilian courts in order to reprimand illegitimate domain name registration and use. Courts are relying basically on the administrative rules issued by the Internet Managing Committee, trademark statutory protection, consumer protection, general principles of law and equity. Brazil is a civil law country, and the absence of objective regulation, either administrative, either statutory, lead to uncertainty in regard of decisions involving domain names. Below I try to bring more details on how courts have been reasoning their decisions about domain names and how international and local ADR mechanisms may influence and improve the decision of such conflicts in Brazil.

a.1) Courts reasoning and the influence of International Cases

I shall consider now the public records of a recent domain name case occurred in Brazil involving the major television broadcast company in Brazil, Rede Globo, and another Brazilian company which had registered domain names of two of the most famous television programs broadcasted by Rede Globo: www.globoesporte.com.br and www.jornalnacional.com.br.

The suit was brought before a Sao Paulo State court both against the registrar FAPESP and the defendant which had registered the domain names of the television programs. In justifying its claims, considering the lack of Brazilian objective regulation, the plaintiff made recourse to general statutes such as the Consumer Code, the Intellectual Property Statute, and Unfair Competition statutes.

Besides such Brazilian sources, the claim was also based on a variety of international sources. As an example, references were made to the "Revised Substantive Guidelines Concerning Administrative Domain Name Challenge Panels" which were expressly mentioned by the plaintiff, as well as the WIPO (World Intellectual Property Organization) discussions on domain names and trademarks contained therein.

Additionally, the plaintiff presented a collection of American cases regarding domain names, such as Act Media v. Active Media International Inc., 1996 U.S. Dist. LEXIS 20814 (N.D. Ill. 1996), Panavision International L.P. v. Toeppen, 141 F.3d 1316 (9th Cir. 4/17/98), Card Service International v. McGee, 1997 WL 16795 (E.D.Va. 1/17/96), Playboy Enterprises, Inc. v. Calvin Desing Label, Civ. No. C-97-3204 (N.D. Cal., Sept. 8, 1997), and made reference to the doctrines which based those decisions, like trademark dilution and unfair competition.

The outcome of this case was exemplary. Both the first instance court and the appellate court have decided for a violation of the plaintiff's rights. The court reasoned that the principle of "first come, first served" should be subject to limitations. The court recognised certain previous conditions should be met in order to have the right to a domain name. One of the conditions mentioned by the court was the above mentioned Resolution 1 of the Internet Managing Committee, providing for the protection of "well-known" and "reputed trademarks" in regard of domain name registration, and therefore determined the transference of the domain names to the plaintiff and an exemplary condemnation of the defendant for damages.

This case demonstrates that foreign doctrines and decisions may influence Brazilian courts, especially in regard of cases involving areas in which Brazil has a small tradition in litigation or new issues brought by technological development. For instance, in competition cases, foreign decisions are currently presented as parameters for administrative decisions under administrative authorities. More recently, litigation on Internet is becoming permeated by the influence of foreign doctrines and decisions, as part of the legal reasoning lawyers and sometimes courts.

a.2) ADR mechanisms - Impact in Brazil

According to the above, Brazil has not established yet neither a consistent domain name policy to resolve conflicts nor has established objective legal criteria which could guide courts towards a more consistent decision-making regarding domain names. In such scenario, if considered the implementation of the UDRP (Uniform Dispute Resolution Policy) by ICANN, it can be perfectly assumed that such mechanisms have an actual positive impact on resolving domain name conflicts in Brazil.

At least three cases can be taken as an example of the effectiveness of such mechanisms regarding conflicts which would be primarily resolved under Brazilian jurisdiction. First, the Administrative Panel Decision No. D2000-0155 conducted under the WIPO according to the UDRP. In such case the complainant was Embratel-Empresa Brasileira de Telecomunicações S.A., the largest long distance carrier in Brazil, owner of the famous telecommunications trademark "Embratel", registered before the Brazilian INPI. The respondent was a Brazilian individual also resident in Brazil which had registered the domain name www.embratel.net before the NSI. In the case, the respondent failed to present his reply withing the UDRP's term, and the sole panellist, returning to the complainant, asked for a term extension which was not agreed. Therefore, he sole panellist decided that the evidence brought by the complainant was enough to determine the transference of the domain name to the complainant, according to the UDRP.

The second important case involves the abovementioned TV Globo10, the major television broadcaster in Brazil. The respondent was a Brazilian company which had registered the domain name www.redeglobo.net in the United States. The case was conducted under the WIPO by three panelists, following the UDRP. The panellists considered that the respondent failed to ascertain its good-faith rights over the domain name www.redeglobo.net and unanimously determined the domain transfer to Rede Globo according to the UDRP.

The third case also involves Rede Globo11 in regard of the domain names "jornal nacional" and "globoesporte.com", which is the same dispute which has been brought to Courts in Brazil in regard of the registration of such domain names under the ccTLD ".br" (cf. above). In this case, TV Globo pursued to obtain the domains www.globoesporte.com and www.jornalnacional.com registered by a Brazilian entity before an American registrar. The panellist once again decided that the respondent failed to demonstrate its good-faith regarding the domain names use, and according to the UDRP, both domains were transferred to Rede Globo.

The cases briefly mentioned clearly evidence that the policy is being capable of absorbing and resolving litigation regarding domain names in Brazil which otherwise would be brought to Brazilian courts. Moreover, in cases as the above, in which the registrar is located abroad, the effectiveness of a Brazilian court decision could be hindered by difficulties in enforcing the order in connection with the foreign registrar. In such cases in which the registrar is located abroad, considering the peculiarities of Brazilian jurisdiction, it is considerably more effective to submit the dispute to a provider applying the UDRP.

Additionally, considering three factors, namely, (a) the scarcity of precedents regarding Brazilian court decisions regarding domain name disputes; (b) the absence of statutory and administrative objective criteria to guide court decisions; and (c) the absence of a Brazilian alternative dispute resolution mechanisms which could expedite decisions regarding domain names, the UDRP can play an even more influential role regarding Brazilian jurisdiction.

In regard of items (a) and (b) above, UDRP criteria for testing the legitimacy of using a certain domain name can potentially play an important role before Brazilian courts. Despite the fact that none of the decisions granted by the WIPO Arbitration and Mediation Center under the UDRP mentioned above were challenged before Brazilian courts, in case such challenge had occurred, it is plausible that courts would have a good acceptance regarding UDRP criteria and most probably, would decide in a manner compatible with the decision granted under the UDRP. And in doing so, such precedents regarding the acceptance of UDRP could influence other Brazilian court decisions.

Regarding item (c) above, the UDRP can also play an influential role. Should the police satisfactorily reach its scope (what seems to be happening, at least in regard of the domain name conflicts involving Brazilian entities), the policy model could inspire the creation of a more expedite institution to decide domain name conflicts in Brazil regarding the ".br" ccTLD and even the adoption of similar criteria to decide such conflicts.

b) Jurisdiction, Applicable Law, Consumer Law and ADR mechanisms in Brazil

Domain name conflicts are the most apparent type of disputes arising out of the growing electronic environment in Brazil. As the Internet continues to grow, other sorts of conflicts are bound to appear. Below there is a brief panorama of how the Brazilian institutional apparatus currently deals with jurisdiction matters, and some comments about the influence ADR mechanisms may have in bridging institutional inefficiencies.

b.1) Jurisdiction matters, Applicable Law and the Brazilian Consumer Code

Jurisdiction matters in Brazil are mainly regulated by the Introductory Statute to the Civil Code12. Concerning the definition of applicable law to a certain contract, Article 8 of such Statute provides that: "To qualify and govern obligations, the applicable law is that of the country in which they were contracted"13. The second paragraph to same article provides that "Contractual Obligations are regarded to have been executed in the place of the offering party"14

Since applicable law is expressly determined by such provisions, choice of law is regarded preliminarily as not subject to the will of the parties according to Brazilian Legal System. The rationale is that since such referred Statute determines what shall be the applicable law to a certain contract, the parties could not freely choose the law to govern such contract. Applicable law to a contract would be, therefore, that of the place in which the contract was executed without the possibility of a different choice of law by the will of the parties.

However, inasmuch as that the matter of choice of law has not been settled uniformly by Courts, the matter is still regarded as a grey area in Brazilian Legal System. In this path, Brazilian commentators are divided in defending that applicable law to a contract can be freely decided by the will of the parties15 and those defending that "choice of law" is not possible in Brazil16, since the abovementioned provisions of Private International Law could not be waived by the parties.

For the purposes of this article, I shall not discuss the fundamental aspects of this controversy whether Brazilian Legal System allows or not choice of law by the will of the parties. However I shall assume that even in case the parties are not allowed to decide what shall be the governing law of a certain contract, such parties are free to decide the place in which such contract is considered to be executed, leading therefore, to the application of the Law of such place to that specific contract.

Accordingly, regarding electronic contract, Article 1.087 of the Brazilian Civil Code provides that when a contract is executed by means of offer and acceptance, the place of execution of said contract is regarded to be the place from which the offer emanated. Since many electronic contracts are made through offer and acceptance, the place nexus plays a relevant role in determining the applicable law governing an electronic contract. As per the article 9 of the abovementioned Introductory Statute to the Brazilian Civil Code, a contract in Brazil would be subject to the law of the place of its execution. Therefore, contracts executed through offer and acceptance are preliminarily subject to the law of the jurisdiction from which the offer emanated. Consequently, even in cases in which Brazilian courts exercise jurisdiction, if a contract was electronic executed by the acceptance of an offer placed abroad, Brazilian courts would have to apply the law of such place from which the offer emanated.

However, an important issue shall be considered in connection with the above. The Sao Paulo section of the Brazilian Bar Association (OAB-SP) has prepared a draft bill project which was submitted to the Brazilian Congress in order to regulate e-commerce, electronic signatures and electronic documents17. Such draft bill was based basically on the 1996 UNCITRAL Model Law on Electronic Commerce and on European Community Directive for E-commerce. Such draft bill project was converted into the Draft Bill No. 1589, in 1999 and is being discussed before the Brazilian Congress and may have a significant impact on jurisdiction matters in case it be enacted.

The draft bill provides on its Article 13 that "Consumer Law shall be applied to electronic commerce."18 This provision could be construed in order that electronic commercial contracts between suppliers and consumers, regardless of the place in which each party is located, would be subject to Brazilian Consumer Code. Considering that the Consumer Code defines the term supplier as "any and all natural person or legal entity, incorporated or not, public or private, national or foreign, supporting activities of production, assemblage, creation, construction, transformation, importation, exportation, distribution or commercialization of products or rendering of services."19 Therefore, the Brazilian Consumer Code would also be applicable to international electronic commercial contracts executed between consumers and suppliers.

Since the Consumer Code is matter of public order, its it can impact the enforcement of foreign decisions in Brazil. As a general rule, foreign decisions are enforceable in Brazil since they comply with general principles of law embodied in Brazilian Legal System and are not against the Public Order. Since the consumer protection is characterized to be a mandatory public matter in Brazil20, it is most probable that electronic contracts which do not comply with the general principles embodied by the Brazilian Consumer Code would not be enforceable against the consumer in Brazil.

In order to verify special jurisdiction rules for consumers, it is necessary firstly to trace the general rules of jurisdiction in Brazi. The general assertion of jurisdiction by Brazilian courts is mainly set forth in the Brazilian Civil Procedure Code. Accordingly, Brazilian Courts bear general jurisdiction over:

  1. Lawsuits in which the defendant is resident in Brazil21;
  2. Lawsuits in which the defendant maintains agencies or branches in Brazil22;
  3. Lawsuits concerning obligations to be enforced in Brazil23.

In lawsuits arising out of electronically executed contracts, in case the defendant maintains branches or agencies in Brazil, Brazilian Courts are competent to appraise and decide such lawsuit. Moreover, Brazilian Courts are competent to decide any sort of obligations to be enforced in Brazil. However, exclusively Brazilian Courts can decide matters regarding Real Estate rights connected to property located in Brazil24. Accordingly, the general rule of jurisdiction is that court selection clauses can be inserted in electronic contracts, unless when involving Real Estate rights of property located in Brazil.

The Consumer Code provides exceptions to such general rules. In a contract between a consumer and a supplier the consumer has the right to file the lawsuit before a Brazilian Court. According to Article 101 of the Brazilian Consumer Code: "Lawsuits concerning the responsibility of the supplier of products and services ... are subject to the following provisions: I - the lawsuit can be filed at the domicile of the plaintiff"25 That is an additional and special jurisdiction provision granted to consumers in connection with consumer contracts. Therefore, Brazilian Courts can assert jurisdiction to decide lawsuits arising out of commercial contracts between a supplier of products and services and a consumer, even when such contracts are executed electronically and between parties resident in different countries, since the consumer is resident in Brazil.

According to the above, disputes involving consumer relations electronically established may imply some problems. According to current Brazilian law, in case of disputes involving consumers in regard of an electronic transaction, if the offer was placed abroad, the applicable law would be the law of such place and Brazilian courts would have jurisdiction on the dispute, unless such prerogative is expressly waived by the consumer.

In case the abovementioned draft bill is enacted, in cases involving disputes arising from electronic transactions characterized as consumer relations, Brazilian courts would have jurisdiction over disputes involving Brazilian consumers, and the Brazilian Consumer Code would apply.

Regarding Arbitration, despite the fact Brazil has not signed the main Arbitration conventions, such as the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Statute 9.307/96 (Arbitration Statute) definitively provided the recognition of arbitration procedures and awards in Brazil. As per such statute, parties to a contract can freely determine the applicable law or rules governing the arbitration, as well as freely determining the Arbitrator. However, special rules are applicable to Adhesion Contracts in regard to Arbitration. Article 5 of Statute 9.307/96 provides that "In Adhesion contracts, the Arbitration Clause shall only be enforceable in case the adhering party is responsible for proposing the inclusion of such clause, or when the adhering party agrees with such inclusion in written by means of a document in annex or in bold characters, with a special signature or visa for the arbitration clause"26. Such provisions shall probably be construed in the sense that arbitration clauses inserted in electronic Adhesion Contracts are not enforceable. However, if Draft Bill No. 1589 is enacted, it expressly provides for an exception regarding the definition of written in regard of electronic contracts, allowing arbitration clauses to be inserted in such contracts without raising validity concerns.

b.2) Impact ADR mechanisms

As seen above, deciding an international Internet consumer conflict on the grounds of traditional litigation in Brazil may be a complicated matter. Firstly, Brazilian judiciary presents some inherent inefficiencies which are aggravated when dealing with a case which may involve the applicability of a foreign law. Faced with the challenge of having to apply laws from different countries, the courts may adopt a reductionist solution, such as establishing the prevalence of lex fori. Draft Bill No. 1589 may even raise such issue regarding the prevalence of lex fori, inasmuch as such Bill provides for the application of the Brazilian Consumer Code to any electronic consumer contracts, as mentioned above.

However, such solution does bear a reductionist character. Even though consumer relations are currently the most probable source of disputes involving electronic transactions in Brazil, with the expansion of Internet use, other conflicts strictly originated from online relations may arise in the near future. And for those conflicts, the institutional deficit regarding ADR mechanisms is clear.

As pointed out by Robert Bordone27, there are certain conflicts which arise directly from the interaction between Internet communities. Such conflicts demand an expedite and interest-based ground for dispute resolution, to which the traditional legal institutions cannot provide a satisfactory answer. This problem is still intensified in Brazil because access to courts is already per se an important problem28. Brazilian courts tend to be sometimes exaggeratedly formalistic, creating additional barriers to access to courts. Such barriers can bring inefficiencies to traditional dispute resolution mechanisms in Brazil when dealing with such potential new conflicts.

Therefore, projects such as the Online Ombuds Office and the Virtual Magistrate sponsored by the National Center for Automated Information Research (NCAIR) may have an important role of inspiring the design of similar institutions under Brazilian jurisdiction. Even considering that such online ADR models are still distant from effectively being used by Brazilian residents as an instance for resolving actual online conflicts, for various reasons such as language barriers, cultural barriers, lack of information and divulgation and probable difficulties of enforcement, such models can have an indirect impact on Brazilian jurisdiction. Depending on the success of such models, they can lead to the creation of similar institutions in Brazil, adapted to Brazilian reality, in order to transcend the significant barriers regarding traditional dispute resolution mechanisms in Brazil.

In case of consumer contracts and other disputes which may arise from online transactions or relations, the creation of international ADR mechanisms, interest-based, as proposed by Robert Bordone, and multilingual, could contribute to further development of electronic commerce in Brazil and Latin America as a whole. Since it can be assumed that most part of consumers would be reluctant to bring their cases to Brazilian courts in order to resolve an international consumer-supplier dispute, either because of the usual barriers29 regarding access to courts and other inefficiencies, either because of the assumption that the the court decision would find complications to be enforced, the creation of reliable international ADR mechanisms could help in increasing the security expectations of Internet users, and therefore foster its continued growth.

Conclusion

ADR mechanisms can play an important role regarding Brazilian jurisdiction, either by effectively absorbing part of the potential conflicts, such as the UDRP, or by providing models which can be adapted to local realities. Since access to traditional courts is in general obstructed by several sorts of barriers, especially in connection with new forms of litigation arising from Internet use, the creation of effective ADR mechanisms could significantly attenuate a growing gap between traditional mechanisms for resolving conflicts and legal security demands from Internet users.

Endnotes

  1. For a specific analysis of such deficits in Brazilian law, cf. DA SILVA Jr., Ronaldo Lemos, Responding to Legal Obstacles to E-commerce in Latin America, published by the National Law Center for International Free Trade (www.natlaw.com), in Inter-American Trade Report, 1999 et alli.
  2. The Internet Managing Committee was created by means of the Administrative Ruling nr. 147, dated May 31, 1995.
  3. Such delegation was effected by means of the Internet Managing Committee Resolution nr. 1, dated April 15, 1998. However, even before such official delegation, FAPESP was already managing domain names and number in Brazil.
  4. For an American article briefly describing Domain Names policy in Brazil, cf. CABELL, Diane, Foreign Domain Name Disputes 2000, in http://www.mama-tech.com/foreign.html#9.
  5. Informal translation.
  6. Informal translation.
  7. A Brazilian private non-profit organization aggregating lawyers and students for the development of Intellectual Property protection in Brazil. Their website is www.abpi.org.br.
  8. An extract of the decision: "It cannot be accepted that the claim is asserted on the grounds of trademark protection, namely, the registered trademark AOL. Firstly, because trademarks consist in Intellectual Property which cannot be confused with domain names in the realm of computer communications. Secondly, trademarks are characterized by a certain identity, which does not imply protection beyond the contours of autonomous element registered (AOL), being vain to determine the prohibition of conjugating the trademark with other expressions (aol.com.br) which, even if similar to the individuality of the trademark owner, does not necessarily correspond to the trademark itself...". (Informal Translation). Federal Regional Tribunal, 4th circuit, Federal Judge José Geraldo da Silva. Such decision lead many Internet companies to registry as their trademarks not only their names itself, but their names conjugated with expressions like "name.com" or "name.com.br" as an entire trademark.
  9. WIPO Arbitration and Mediation Center, Administrative Pane Decision, TV Globo Ltda. v. Gree Card Transportes e Eventos Ltda, Case No. D2000-0351.
  10. WIPO Arbitration and Mediation Center, Administrative Panel Decision, TV Globo v. Radio Morena, Case No. D2000-0245.
  11. Decree-Law nr. 4.657, 1942.
  12. Decree-Law nr. 4.657, 1942, Article 9. Free translation.
  13. Decree-Law nr. 4.657, 1942, Article 9, second paragraph. Free translation.
  14. Commetators defending the possibility of choice of law: BASTOS, Celso Ribeiro, Contratos Internacionais, São Paulo, 1990, Saraiva. STRENGER, Irineu, Contratos Internacionais, São Paulo, 1998, LTR.
  15. Commentators defending that applicable law cannot be decided by the will of the parties: RODAS, João Grandino, Direito Inter

    Back

    About ILPF | To Join ILPF | Working Groups & Publications
    Member Resources | Events | Home