Brazil: Update on Domain Names In Brazil*

Foreign companies can register ".br" domain names in Brazil either directly in their own names or indirectly through a Brazilian subsidiary, licensee, or distributor.

There is no limit on the number of domain names one entity can register.

FAPESP, the Brazilian Registry, offers the following sTLDs. Applicants must be legal entities and must submit additional documentation to prove their eligibility.

FAPESP also offers sTLDs for the following professions: administrators, attorneys, architects, actors, biologist, research/public health doctors, brokers, stage designers, accountants, economists, engineers, information technology specialists, audiologists, photographers, physical therapists, geographers, journalists, auctioneers, mathematicians and statisticians, doctors, musicians, notaries, nutritionists, dentists, marketing professionals, professors, psychologists, amateur radio enthusiasts, sociologists, translators, veterinarians, and zoologists. Applicants must be natural persons and must submit additional documentation to prove their eligibility.

To register a domain name directly in its own name, a foreign company first has to apply to FAPESP for an identification number, by submitting the following documents:

1. Power of Attorney granting a Brazilian attorney the power to take all necessary actions concerning domain names.
2. Declaration of Business Activity which includes the entity's name, address, telephone number, stated business purpose, the name and position of its representative, and a summary of its commercial activities.
3. Declaration of Obligation, in which the firm agrees to incorporate a Brazilian subsidiary within 1 year from the date of submission of the identification number application (FAPESP’s rules allow ".br" domain names to be registered only to entities that "operate legally inside [Brazil]").

These documents must be executed, notarised, and legalised by a Brazilian Consulate in the foreign company’s home country, and must be officially translated before submission to FAPESP. Once FAPESP issues the foreign company an identification number, the company can apply for ".br" domain names.

In applying for a domain name, a foreign company must specify a Billing Contact that it is located in Brazil. Technically, the entity, administrative, and technical contacts can be outside Brazil, although the fields on FAPESP's application webpage do not accept most foreign addresses. The company must also provide the IP addresses of at two DNS servers and contact the administrators of these servers to arrange for them to be configured for the new domain names.

FAPESP charges a nominal application fee and a nominal annual maintenance fee, both of which must be paid at a Brazilian bank.

FAPESP's rules provide that if a foreign company fails to incorporate a Brazilian subsidiary within 12 months of its application for an identification number, its domain name registration(s) will be cancelled. FAPESP’s rules imply that a foreign company which has a Brazilian subsidiary, either at the time of its application for an identification number or by the end of the 12-month period, but does not transfer the registration to the subsidiary by end of the 12-month period, will have its domain name registration cancelled.

If a foreign company already has a Brazilian subsidiary, it should not apply for domain names directly in its own name, but rather through the subsidiary.

Brazilian companies do not need to apply for a FAPESP identification number (they use their federal tax identification number, instead). Otherwise, the same application rules and fees discussed above apply to Brazilian companies.

A foreign company which allows a Brazilian subsidiary, licensee, or distributor to register a ".br" domain name that contains its trade name or trademark should enter into a license agreement with the Brazilian company to fully protect its intellectual property rights.

Unfortunately, FAPESP has not adopted any uniform dispute resolution policy for resolving disputes over domain name ownership. Furthermore, the agency registers domain names on a first-come, first-serve basis without analyzing whether the domain names infringe the intellectual property rights of third parties.

Presently, the only way for a foreign company to recover a domain name from a Brazilian "cybersquatter," or otherwise stop inappropriate use of a ".br" domain name, is either through a negotiated settlement or a court action.

In a court action, the plaintiff can file a request for preliminary injunction as soon as the action is filed, requesting the court to order FAPESP to "freeze" the domain name until the litigation is complete.