Session
Regulation, competition and innovation: How could regulatory and self-regulatory frameworks help foster more competitive Internet-related markets, a larger diversity of business models, and more innovation? How to enable equitable access to data, marketplaces or infrastructures for fostering competition and innovation on the Internet?
Protecting consumer rights: What regulatory approaches are/could be effective in upholding consumer rights, offering adequate remedies for rights violations, and eliminating unfair and deceptive practices from the part of Internet companies?
Other - 30 Min
Format description: This will not be a tutorial, but the room could use a tutorial-like configuration.
This session will provide an overview of the adoption of administrative measures for the resolution of conflicts related to .br domain names using SACI-Adm, a tool which may also be useful for other Internet-related players. The system is available to more than 4 million .br domain names, and hundreds of cases have been solved before reaching litigation. As a positive side-effect of the use of SACI-Adm, more than 400 lawsuits between parts claiming domain names have been avoided, leaving space for the Brazilian Judiciary System to focus on other priorities. From the few cases that have turned into a lawsuit, judges have historically preferred to reaffirm SACI-Adm decisions, as they have already been analyzed by experts.
The presentation will focus on four major points: 1) Background (what is SACI-Adm; why did we adopt SACI-Adm?; main types of conflict; the differences between SACI-Adm and the UDRP); 2) Adoption (implementation process; difference between the administrative and the arbitration processes; accredited entities); 3) Incentive to dejudicialization: how and when can other Internet actors consider to adopt this method of conflict resolution?; 4) Results
The session will be designed in order to provide an objective presentation of a best-practice adopted by NIC.br, which can also be used by other Internet-related actors to avoid legal disputes undertaken between their own customers. Four major topics will be covered by the presentation (Background; Adoption; Incentive to dejudicialization; Results), followed by a Q&A with the audience. Participation will be ensured by the presenter’s best efforts to promote slots for answering questions from the audience. A “warm-up” Zoom poll may be used at the start of the session, to check the audience perception about the topic.
Brazilian Internet Steering Committee (CGI.br)
- Everton Teles Rodrigues, Expert Advisor to the CGI.br Board, Technical Community, GRULAC
- Kelli Priscila Angelini Neves, NIC.br Legal Department, Technical Community, GRULAC
- Diego Sígoli Domingues, NIC.br Legal Department, Technical Community, GRULAC
- Alexandre Costa Barbosa, Technical Advisor to the CGI.br Board, Technical Community, GRULAC
- Isadora Perez Alves Peixoto, Technical Advisor to the CGI.br Board, Technical Community, GRULAC
Everton Teles Rodrigues, Expert Advisor to the CGI.br Board, Technical Community, GRULAC [Confirmed] Kelli Priscila Angelini Neves, NIC.br Legal Department, Technical Community, GRULAC [TBC] Diego Sígoli Domingues, NIC.br Legal Department, Technical Community, GRULAC [TBC]
Everton Teles Rodrigues, Expert Advisor to the CGI.br Board, Technical Community, GRULAC [Confirmed]
Alexandre Costa Barbosa, Technical Advisor to the CGI.br Board, Technical Community, GRULAC [Confirmed]
Isadora Perez Alves Peixoto, Technical Advisor to the CGI.br Board, Technical Community, GRULAC [Confirmed]
Targets: NIC.br plays a central role for the success of the Brazilian Internet Governance model system, by providing the registration of .br domain names to hundreds of thousands of registrants. As some litigation between registrants may arise from that activity, we provide an administrative alternative to settle disputes under an specialized, focused and fast solution, which counts with partners from renowned entities, such as the World Intellectual Property Organization (WIPO), the Chamber of Commerce Brazil-Canada (CCBC) and the Brazilian Intellectual Property Association (ABPI). As a positive side-effect of the use of SACI-Adm, more than 400 lawsuits between parts claiming domain names have been avoided, leaving space for the Brazilian Judiciary System to focus on other priorities. From the few cases that have turned into a lawsuit, judges have historically preferred to reaffirm SACI-Adm decisions, as they have already been analyzed by experts.
Report
The Open Forum organized by the Brazilian Internet Steering Committee (CGI.br) revolved around presenting the 11 years of the .br domain names conflicts resolution and its overview on adopting administrative measures using SACI-Adm.
The need to have a conflict resolution system becomes evident when we realize that, as of 2021, there are 4.8 million domain names registered within NIC.br - the executive branch of CGI.br and the private non for profit organization responsible for administration and operating maintenance of said domain names. Considering that 92% of Brazilian companies use .br for their websites, this high percentage puts Brazil in the 6th position among ccTLDs, combined with the slowness of the judiciary in dealing with issues of this sort, boosted the creation of the SACI-Adm tool.
In regards to the presentation at IGF 2021, the Forum discussed four topics: The first topic was on background remarks. The second was on what SACI-Adm actually is and how it works. The third was on the results over the years, and the final topic was on the incentives to de-judicialization - which means, to find alternate ways in resolution of a conflict without resorting to a commonly sought out lawsuit.
Regarding the first topic, it was explained that in Brazil, it is used the “first come, first served” reasoning to register a Trademark. However, this rule does not prevent a possibility of trademark violation by the domain holder. Thus, a potential violation could lead to errors and mistakes towards the actual owner of the brand - regardless of the nature of the error, which could be intentional or caused by unfamiliarity.
If a violation situation happened back in 2010, the only thing NIC.br could do at the time was to suggest that the trademark holder should file a lawsuit against the first registrant. At first this may seem like a solution, but actually it is not, mainly because Brazil has 212 million people as its population, and the judiciary has over 80 million lawsuits that still needs to be analyzed. In this particular case, domain name-related lawsuits have taken up to 8 years to be analyzed and led to trial in court, which is far away from the dynamics a domain name conflict requires. Thus, seeking to proactively address the problem, CGI.br approved a resolution for SACI-Adm's creation in 2010.
Before we go any further, it is fundamental to say that CGI.br resolutions are not binding - CGI.br is a Committee composed of experts, whereas Trademark laws are binding and may be enforceable by the competent authority. Thus, according to Brazilian law, SACI-Adm cannot prevent access to courts (it is not an arbitration procedure). In reality, SACI-Adm was designed to be NIC.br’s in-house solution. Therefore it cannot be confused with Arbitration laws.
So how does SACI-Adm work? Adherence to the procedure happens through the contract signed at the moment of registration of domain names under ".br". In the event of a registrant or new party initiate a procedure, in light of transparency purposes, this procedure will be made public on NIC.br's Registro website (www.registro.br), as this resolution is not aimed to be confidential.
In general, SACI-Adm was created in 2010 to solve conflicts between .br domain names holders and any third party which contests the registration legitimacy. In the procedure, there are three players involved: the third party (Complainant), the registrant, and three accredited and expert institutions, which are WIPO (World Intellectual Property Organization), Chamber of Commerce Brazil-Canada, and the Brazilian Intellectual Property Association (ABPI).
The first step is the Complainant applying to start a SACI-Adm procedure. The procedure is then analyzed by one of the three aforementioned accredited institutions. The Complainant may choose, up to three experts, to participate in this in-house decision. Then, the Complainant must prove that the .br domain name was registered or used in bad faith. They need to prove that the domain is identical or similar enough to create confusion regarding the trademark owned by the Complainant and/or other titles, names, or domain names over which the Complainant has precedence. It is important to mention that, during this procedure, domain names' transfers are not allowed.
Regarding the third topic, SACI-Adm’s results involve three relevant advantages. The first is regarding cost. The Complainant bears first costs, and the amount does not change, despite the case's complexity. Knowing how much the procedure will cost from its start to finish is highly beneficial to all parties involved. The second advantage is regarding amount of time it takes for a final expert resolution. Domains conflicts must be maintained, transferred, or canceled within 90 days, in clear juxtaposition to the eight-year average compared to a similar case in the judiciary. The third relates to execution - NIC.br itself executes the expert's final decision.
In sum, a simple comparison of SACI-Adm's objectives and results in juxtaposition of a lawsuit is that the first aims to transfer the domain's ownership, whereas the latter seeks to cancel the domains. This difference impacts on the domain operation and affects the business economically.
In the event of either parties involved decide to commence legal litigation within 15 days from the expert's decision, in that case NIC.br will refrain from executing said decision. The competent court will then further decide on the conflict based on the aforementioned non binding principle.
To use SACI- Adm as a possible conflict resolution is becoming ever so relevant according to numbers increasingly growing numbers throughout the years. In 2011, a year after its creation, there were only three open procedures regarding domain names conflicts. In 2021, 10 years later, there are 505 demands under the SACI-Adm system, reaffirming its operation as a helpful direct assistance to the judiciary.
Moreover, it is interesting to point out that, on average, there are 46 new procedures each year, and out of those total 505 demands, only 9 of them (1,78%) are eventually taken to court after the experts’ decision. Also, out of these nine court cases, only 1 of them actually reverted the experts' decision, which is a unique and rather successful approval rate for the SACI-Adm system.
This number brings a curious observation, discussed in the past fourth topic: if more companies and businesses were to combine their efforts into mitigating lawsuits, and in its place, use an alternative resolution conflict systems, such as SACI-Adm, then it would provide for quicker and more professional resolutions that could directly become an effective support to the legal system.