HAITI Law and Practice Contributed by: Vanessa Abdel-Razak, Ludsen Saint-Phar and Webster Registre, Cabinet Abdel-Razak & Associés
product’s use or performance cannot be monopolised through trade mark protection. Collective marks are recognised and may be regis - tered by associations or groups to identify goods or services produced by their members. Certification marks are also permitted and are used to certify that products or services meet certain quality standards or characteristics, rather than identifying a single com - mercial source. Geographical indications are protected in Haiti primar - ily through international treaties to which the country is a party. These indications identify products whose quality or reputation is linked to a specific geographic origin and are protected against misleading use. Surnames may be registered as trade marks, but only where they have acquired distinctiveness and are capable of identifying a particular commercial source. Common family names are subject to closer scrutiny to avoid unfairly restricting others from using their own names in business. Industrial designs are generally protected under a separate legal regime and not automatically entitled to trade mark protection. However, an industrial design may qualify for trade mark protection in limited cases where it is non-functional and has become distinc - tive through use as a brand identifier rather than as a purely aesthetic or technical feature. With respect to the types of signs that may be regis - tered, Haitian practice primarily recognises tradition - al trade marks such as words, images and shapes. Non-traditional marks such as sounds, colours alone, scents or motion marks are not expressly regulated and are generally not accepted for registration in prac - tice. Haitian law does not provide for a separate category of statutorily protected special marks distinct from ordinary trade marks (such as Olympic-related marks in some jurisdictions). Any enhanced protection typi - cally arises from international conventions rather than specific domestic statutes.
Finally, Haiti recognises the famous marks doctrine. Well-known marks that are famous internationally may be protected in Haiti even if they are not registered or yet used locally, provided their reputation can be established and their unauthorised use by a third party would likely cause confusion or unfairly benefit from the mark’s reputation. 2.2 Essential Elements of Trade Mark Protection In Haiti, a sign qualifies for trade mark protection if it meets several core requirements. First, the mark must be distinctive, meaning it is capable of identify - ing the commercial origin of goods or services and distinguishing them from those of others. Marks that are generic, purely descriptive, misleading, or contrary to public order or morality are not eligible for protec - tion unless they have acquired distinctiveness through use. Second, the mark must be lawful and non-func - tional; features that are dictated solely by technical or functional considerations cannot be protected as trade marks. While use in commerce is not required at the time of filing in Haiti, genuine use becomes rel - evant for maintaining rights over time, as prolonged non-use may expose a registration to cancellation. A party may establish acquired distinctiveness (sec - ondary meaning) by demonstrating that, through use, a sign that was initially non-distinctive has come to be recognised by the relevant public as identifying a single commercial source. In practice, this is assessed on a case-by-case basis and may be proven through evidence such as the length and continuity of use of the mark, the extent and geographic scope of sales, advertising and promotional efforts, market presence and recognition, and, where available, consumer perception evidence. The key factors considered in an acquired distinctiveness analysis are whether the relevant consumers associate the sign with a particu - lar undertaking, the duration and consistency of use, the intensity of marketing efforts, and the absence of widespread third-party use of the same or similar signs. 2.3 Trade Mark Rights Trade mark owners are granted exclusive rights that allow them to use the mark and to prevent unauthor - ised third parties from using identical or confusingly
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