Arbitragem como reguladora dos conflitos envolvendo domain names e a organização mundial da propriedade intelectual como emissora de comunicações decisionais

Abstract

This research has as theme the arbitration institute for the solution of controversies relative to domain names and the WIPO, as an organization holder of decisional power. Therefore, will focus the international arbitration, in a systemic-organizational perspective, and its elements for the solution of controversies involving domain names, from the Uniform Domain Name Dispute Resolution Policy (UDRP) of ICANN and the acting of the Arbitration and Mediation Center of WIPO, while actors of decision makers. The research problem elected lies in the following questioning: The communicative decisions from the Arbitration and Mediation Center of WIPO provice suitable solutions to conflicts over Domain Names and reveal themselves able to mark the effectiveness of the arbitration institute in those disputes? Aiming at the proposed quest, was established as the general objective, understand arbitration as appropriate means for the resolution of conflicts involving the domain names, from the performance of the Arbitration and Mediation Center of WIPO and the binding of their decisions. Specifically, this research intends: (a) study the theory of organizations and the contributions of Luhmann's Systemic Theory; (b) analyze the distinctive signs, while elements of the Intellectual Property Rights, and the importance of protection to the Domain Names System in a globalized society and high commercial competition; (c) present the arbitration as a non jurisdictional institute of conflict resolution for the reduction the complexity of the controversies related to domain names; (d) check, by sampling, analyzing their decisions, the performance of the Arbitration and Mediation Center of WIPO in resolving controversies linked to domain names. Therefore, the research established as methodological procedures: (1) the carrying out of a bibliographic survey, based on books and articles published in relevant periodicals on the subject; (2) documentary research, where was analyzed the established instruments by ICANN and by WIPO in what concerns the policies, rules and jurisprudential understandings of cases involving conflicts in domain names. Face to the linking of the research line “Society, New Rights and Transnationalization”, was elected to its development of the research, the systemic method, advocated by Niklas Luhmann, which is neither inductive nor deductive, since it intends to describe the systems (open and closed) and its relation with the ambience. With the analysis of the decisions of the Arbitration and Mediation Center of WIPO, it was possible to conclude that constitutes itselves an organization that produces decision-making and binding 10 communications for the solution of controversy involving domain names, being the arbitration the technique chosen. However, the arbitration procedure used, differs from traditional, because the policy of ICANN, considers essential to publicize the content of decisions, thus characterizing, an arbitrage model “sui generis” specific to cases involving the domain names.