1.1. These Regulations will govern the procedures for resolving disputes regarding domain names brought to the ABPI’s Domain Name Dispute Resolution Chamber (“CASD-ND”) on the initiative of any of the concerned parties.
1.2. Changes to these Regulations will apply to the proceedings in progress, except for acts already consummated.
2.1. These Rules apply to disputes in which Complainant alleges that a domain name registered under “.br” falls within one of the situations below, cumulated with one of the situations described in item 2.2:
(a) it is identical or confusingly similar with a trademark owned by the Complainant, filed, before registration of the domain name or already registered, with the Brazilian Patent and Trademark Office – BPTO, or
(b) is identical or confusingly similar with a trademark owned by the Complainant, which has not yet been filed or registered in Brazil, but which is characterized as a well-known trademark in its field of activity for the purposes of art. 126 of Law 9.279/96 (Industrial Property Law), or
(c) it is identical or confusingly similar with an establishment title, business name, civil name, family name or patronymic, pseudonym or well-known alias, singular or collective artistic name, or even another domain name over which the Complainant has prior art.
2.2. This Regulation also apply, in case of malicious use of a domain name, and the following circumstances, among others that may exist, constitute evidence of malice in the use of the domain name subject to SACI-Adm procedure:
(a) the Holder has registered the domain name for the purpose of selling, renting, or transferring it to the Complainant or to a third party, or
(b) the Holder has registered the domain name to prevent the Complainant from using it as a corresponding domain name, or
(c) the Holder has registered the domain name for the purpose of harming Complainant’s business, or
(d) by using the domain name, the Holder intentionally attempts to attract, for profit, Internet users to its website or other electronic address creating a confusingly similarity with Complainant’s identifier.
2.3. All disputes regarding domain names subject to the special compulsory procedures pursuant to the Regulation for the Administrative System for Internet Dispute Resolution for Domain Names under “.br” (“SACI-Adm”), approved by the Brazilian Internet Management Committee -, CGI.br on May 07, 2010, pursuant to Resolution CGI.br/RES/2010/003/P may be the subject matter of resolution.
2.4. Those interested in bringing a dispute resolution proceedings before the ABPI’s CASD-ND may consult the Chamber’s Secretariat in advance to clarify the situations foreseen in the items above and to duly frame the potential dispute under the terms of these Regulations.
3.1. The Complainant will send to the CASD-ND of the ABPI the original Complaint, along with a copy of all documentation to which the Complaint refers. The Complaint and documentation may be submitted in physical or electronic media, in accordance with the instructions issued by the ABPI’s CASD-ND for this purpose.
3.2. Upon submission of the Complaint to the ABPI’s CASD-ND, the Complainant will send a copy of the Complaint, together with all pertinent documentation, which the ABPI’s CASD-ND will send to the Respondent as per item 7.1 of these Regulations.
3.3. After the Complaint has been filed, the Complainant may not submit new allegations or new evidence unless requested to do so by the Executive Secretary, the Specialist(s) or, in special cases, if accepted by the Specialist(s), at the sole discretion of the Specialist(s).
4.1. The Complainant must prove, when filing the Complaint, that it falls within any of the applicable situations for the initiation of the dispute resolution procedure for domain names, as defined in item 2.1 cumulated with one of the situations in item 2.2 above.
4.2. The Complaint must contain, under penalty of rejection:
(a) the Complainant’s full name, qualification and address, including email address and contact telephone number, as available,
(b) the name, qualification, and email address of the Complainant and, if available, physical address and contact telephone number,
(c) identification of the disputed domain name, and corresponding Whois search of Registro.br (whois.registro.br),
(d) the exposition of the factual and legal reasons duly founded, as well as the legitimate interest of the Complainant in relation to the domain name(s) which are the object of the dispute in the terms of item 2 above, and should immediately present all the arguments and documents that prove them,
(e) the accurate identification, documented where appropriate, of the trademark, company name, establishment title, title to an intellectual work, character, civil name, well known pseudonym, domain name, or any other right of the Complainant that has been violated,
(f) the choice of the number of Specialists to be appointed by CASD-ND to resolve the matter: whether only one (1) or three (3) Specialists,
(g) the request for cancellation or transfer of the disputed domain to the Complainant,
(h) indication whether the communication of the final decision of the proceeding should be made by post, in addition to electronic, if the Executive Secretary does not receive acknowledgement of receipt or, for any reason, does not publish said decision on the CASD-ND website no later than the next business day following the day it was sent by e-mail,
(i) indication of the existence, even if by negative declaration, of any other judicial or extrajudicial proceeding that has been initiated or terminated with respect to the domain names that are the subject of the dispute.
4.3. If the Complainant is a Foreign Legal Entity, he/she must register at NIC.br (http:registro.br/reg-estrangers.html) or, at the end of the procedure, indicate an Individual or Legal Entity that will receive the domain, in case the Specialist(s) decide(s) for the transference of the domain to the Complainant.
4.4. Along with the Complaint, the Complainant must submit, failing which the Complaint will be dismissed:
(a) power of attorney, when the Claimant is being represented by an attorney-in-fact, without the need for notarization or consular legalization,
(b) in case of a legal entity, a simple copy of the updated constituent acts, as well as proof of the powers of those who sign for the entity, duly registered, or, in case of an individual, a simple copy of the identity card and of the taxpayer identification CPF,
(c) documentary proof of the alleged facts by the means legally admitted under Brazilian law,
(d) statement signed by the Complainant or their legal representative opting to submit to the SACI-Adm,
(e) statement acknowledging the exclusive competence of the CASD-ND of the ABPI to administer the SACI-Adm procedure,
(f) statement releasing NIC.br from any burden resulting from the SACI-Adm procedure it wishes to initiate, under the terms of the SACI-Adm Regulation,
(g) statement exempting the ABPI’s Center for Resolution of Disputes, Mediation and Arbitration in Intellectual Property (“CSD-ABPI”), and ABPI’s CASD-ND, from participation in and responsibility for any judicial dispute that may be initiated by the Complainant or the Respondent regarding the Complaint,
(h) proof of payment of the applicable fees established by CASD-ND.
4.5. The Complaint may include more than one domain name, if all of them belong to the same holder and that they share a common cause of action.
5.1. Unless otherwise determined by CASD-ND, the Executive Secretary will be responsible for the examination of the formal requirements and all other administrative matters related to the dispute.
5.2. All communication between the ABPI’s CASD-ND, the Parties, the involved registering agency, and the Specialists will be made through the Executive Secretary, and any direct contact of the Parties with the Specialists is forbidden after the special procedure is initiated.
6.1. The Executive Secretary will, within five (5) days from receipt of the Complaint, examine the Complaint to verify compliance with the formal requirements established, including payment of the corresponding fee, and will then file it, assigning a number to the case file.
6.2. If the Claim is found to be irregular or lacking in any of the requirements, CASD-ND will notify the Claimant to remedy the irregularities.
6.3. If the Complainant fails to remedy the irregularities found by CASD-ND within five (5) days of receipt of the summons, the Board will notify the parties and the registering body that the Complaint has been dismissed.
6.4. CASD-ND will not reimburse the Claimant for fees paid if the Claim is initially denied.
7.1. If all the established formal requirements have been met, the Executive Secretary will formally initiate the procedure by summoning the Respondent to submit its Answer and sending it a copy of all the documents and exhibits submitted by the Complainant and supplementary information, if any. Simultaneously, the Executive Secretary will communicate the beginning of the procedure to NIC.br through the email address email@example.com, or other address informed by the mentioned body, with confirmation of receipt, so that NIC.br adopts the necessary measures in order to not allow that the questioned domain name be transferred until the end of the procedure, except in compliance with a judicial order or one issued by an arbitration court.
7.2. The Executive Secretary may request confirmation of the registration of the disputed domain names and/or the Respondent’s details prior to the declaration of the initiation of the proceeding.
7.3. If, as a result of NIC.br’s response to the request provided in item 7.2 above, there is a discrepancy between the data informed by the registrar and those contained in the Complaint, the Executive Secretary will notify the Complainant that, within 5 (five) days, it may amend, add to, or withdraw the Complaint subject to the provisions of item 6.4 above.
7.4. In compliance with the Executive Secretary’s summons, the Complainant may add to the Complaint to substitute the Respondent, change the Respondent’s particulars or modify the factual and legal grounds on which the claim was based, as well as add new documents. CASD-ND will forward a copy of the amendment and new documentation to the Respondent and the registering agency.
8.1. After the procedure has been initiated pursuant to item 7.1, it will be up to the Respondent, within fifteen (15) days from receipt of the summons, to present an Answer, with all the legal and factual reasons it deems appropriate.
8.2. Along with the Answer, the Respondent must submit, under penalty of rejection of the Answer:
a) name, qualification and e-mail address of the Complainant, as well as its representative,
b) indication of whether you wish communication of the final decision of the Proceedings to be made by post, in addition to electronic, if the Executive Secretary does not receive acknowledgement of receipt or, for whatever reason, does not publish the said decision on the CASD-ND website by no later than the next business day following the day on which it was sent by e-mail,
c) power of attorney, when the Claimant is being represented by an attorney-in-fact, without the need for notarization or consular legalization,
d) in case of a legal entity, a simple copy of the updated acts of incorporation, as well as proof of the powers of those who sign for the entity, duly registered, or, in case of an individual, a simple copy of his/her identity card and CPF,
e) documentary proof of the alleged facts through the means legally admitted by the Brazilian legislation,
f) manifestation of its agreement with the number of Experts suggested by the Complainant to decide the conflict or, in case the Complainant has proposed only one (1) Expert and the Respondent wishes to increase to three (3) Experts, the Respondent may propose such increase upon payment of the additional fees established by CASD-ND,
g) declaration releasing NIC.br from any burden resulting from the SACI-Adm procedure it wishes to initiate, under the terms of the SACI-Adm Regulation,
h) statement exempting the CSD-ABPI, as well as CASD-ND from participation and responsibility in any judicial dispute that may be initiated by the Complainant or the Respondent regarding the Complaint,
i) the indication of the existence, even if by negative declaration, of any other judicial or extrajudicial proceeding that has been initiated or terminated with respect to the domain names that are the object of the SACI-Adm proceeding,
j) proof of payment of the applicable fees required by the ABPI’s CASD-ND.
8.3. After submission of the Answer, the Claimant may not submit new allegations or new evidence unless requested to do so by the Specialists or, in special cases, if accepted by the Specialists in their sole discretion.
8.4. In case of non-submission of an Answer, non-compliance with the requirements of item 8.2 or failure to perform an act that is incumbent upon it, the procedure will proceed in default of either Party. If the Complainant fails to present a defense, the Specialists will nevertheless consider the merits of the claim based on the facts and evidence presented in the proceeding, and the decision of the Specialist(s) may in no event be based solely on the party’s default. If the Respondent fails to pay the applicable additional fees upon submission of the Response, the request to increase the number of Specialists from one (1) to three (3) will be deemed ineffective.
8.5. The Executive Secretary must communicate to NIC.br the non-submission of an answer by the Respondent, within the maximum period of ten (10) days after the expiration of the term for defense.
8.6. Once the Executive Secretary is notified of the default, NIC.br, within three (3) days, must contact the Holder of the domain name through the email address registered at the Whois account of Registro.br, informing him of the existence of the proceedings and alerting him that, if he does not manifest within twenty-four (24) hours, the domain that is the object of the proceedings will be frozen (suspended).
8.7. Considering that the freeze foreseen in item 8.6 above has the sole purpose of alerting the holder that there is a procedure underway in the scope of SACI-Adm, the domain will be immediately unfrozen if the Holder reports after the freezing (suspension) of the domain under the terms of item 8.6 above, informing that he is aware of the opening of a procedure in the scope of SACI-Adm.
8.8. In both cases, NIC.br will notify CASD-ND of the occurrence, which will inform the parties of said unfreeze.
9.1. Whether one (1) or three (3) Experts, CASD-ND will always appoint the Expert(s) and the Chairperson from its own list, within fifteen (15) days after the deadline for the Response, upon communication to the parties by electronic means, to be made by the Executive Secretary.
9.2. Without prejudice to any other provision foreseen in the SACI-Adm Regulation, in particular its article 5, the Specialist who falls under any of the instances of article 4 of the Rules of this CASD-ND.
9.3. Before appointment, the Expert nominee will submit to the Executive Secretary a Declaration of Independence and Impartiality, using the form established by CASD-ND.
9.4. Any party may challenge the impediment or suspicion of an Expert within five (5) days from receipt of the communication sent by the Executive Secretary.
9.5. If the Expert does not accept such a plea, he will communicate his decision to the Executive Secretary within five (5) days from the receipt of the communication sent by the Executive Secretary, and the CASD-ND will resolve the incident, in accordance with its Regulation.
9.6. Once appointed, the Specialist will only be replaced in case of force majeure or supervening events that justify replacement in view of the duties of independence and impartiality.
10.1. The Specialists will ensure that the parties have the right to a full defense, adversarial proceedings, and equal treatment. The Specialists may request the parties to provide additional information and documents, or propose conciliation, without prejudice to the deadlines established in this Regulation.
10.2. The Specialists will conduct the procedure foreseen herein in accordance with these Rules, as well as the SACI-Adm Rules, deciding the conflict based on Brazilian Law and treaties in force in Brazil applicable to the case, the statements, documents and other evidence submitted by the Parties, respecting the free opinion of the judge.
10.3. There will be no hearing, unless the Specialists so determine, because they believe that a hearing is strictly necessary for the decision of the conflict.
10.4. If more than one SACI-Adm proceeding exists between the Complainant and the Respondent, either party may request unification of those proceedings by written request to the Specialists who received the first proceeding between the Parties, provided that a decision has not yet been rendered in any of the proceedings to be unified. The Specialists will decide whether or not to unify the SACI-Adm procedures, based on an analysis of need and convenience.
10.5. The conflict resolution procedure will be concluded within a maximum period of ninety (90) days from the date of its initiation and may be extended at the discretion of the Specialist(s) and/or the Executive Secretary, provided it does not exceed a period of twelve (12) months.
10.6. If the procedure has been conducted by a panel of Experts, the decision will be made by majority vote, with each Expert, including the Chair of the Expert panel, having only one vote, and will be reduced to writing by the Chair and signed by the three (3) Specialists. The signature of the decision can be made electronically using asymmetric cryptography by all the Specialists involved in the procedure. If the Specialists do not unanimously agree on the solution to the conflict, the Expert who diverges from the majority may give reasons for his/her dissenting vote, which will be included in the decision.
10.7. The essential requirements of the decision are (a) the report, containing the names of the Parties and the summary of the Complaint and Response as well as the record of the main occurrences that took place in the special procedure, (b) the grounds, containing the analysis of the factual and legal issues raised, (c) the device, containing the resolution of the issues and the final determination; and (d) the date and place it was rendered.
10.8. If the Parties resolve the dispute by agreement, the agreement will be homologated by the Specialist(s) in a summary decision that does not require a statement of reasons.
10.9. Unless otherwise agreed by the Parties, the decision resolving the dispute will determine one of the following measures: (a) cancellation of the domain, (b) transfer of the registration to the Complainant, or (c) maintenance of the domain in the name of the Respondent. There will be no determination of a pecuniary nature.
10.10. The decision on the merits or homologating the agreement will close the SACI-Adm procedure and must be communicated to the parties and to NIC.br by the Executive Secretary within 5 (five) days from the date it is received.
10.11. The interested party may request the Expert(s), within 5 (five) days from the acknowledgement of the decision, to correct any material error or clarify any obscurity, doubt or contradiction of the decision, or to comment on any omitted point of the decision.
10.12. Should the party request the Expert(s) the provisions of item 10.11 above, the Executive Secretary will immediately notify NIC.br so that NIC.br may await the new decision, suspending the period of fifteen (15) working days set forth in Article 22 of the SACI-Adm Regulation.
10.13. The Specialists will decide on the request described in item 10.11, within a maximum period of fifteen (15) days.
10.14. If any of the Parties files a lawsuit or arbitration proceedings within fifteen (15) working days from the date the party is notified of the above decision, NIC.br will not implement the decision rendered in the proceedings and will await the judicial determination or the arbitration proceedings.
10.15. The SACI-Adm procedure will not be secret, and the decisions rendered may be published.
10.16. The Portuguese language will be obligatorily used as the language of the entire procedure foreseen herein, and all decisions, communications, and documents will be issued in this language. In the case of documents originally produced in a foreign language, the Specialists may, at their discretion, require a simple or sworn translation.
11.1. The fees applicable to the special procedure, as published by CASD-ND, will be paid by the Complainant, except in cases where the Complainant elects to increase the number of the Specialists from one (1) to three (3), in which case all additional fees will be paid by the Complainant.
11.2. Each Party will bear its own costs. If it is necessary to repeat additional acts or steps for reasons attributable to one of the Parties, the latter must bear the costs.
12.1. Any communication to be made to CASD-ND, the Parties, the registering agency or the Specialists, including the filing of the Complaint and any supplement thereto, the Response and the Decision, will be in writing, in accordance with the instructions for that purpose issued by CASD-ND or as otherwise provided in the Rules of the Board.
12.2. It will be the Parties’ sole responsibility to keep their personal data up to date, so that any communications made during the special procedure can be effectively received.
12.3. Any petitions or documents submitted to CASD-ND by either Party, in physical media, will be delivered in four (4) copies together with the original.
13.1. Except in cases of willful misconduct or gross negligence, the CSD-ABPI, the CASD-ND, the Executive Secretary and the Specialists will not be liable to the Parties, the registrar involved or any third party for any action or omission with respect to the special procedure.
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