HAITI Law and Practice Contributed by: Vanessa Abdel-Razak, Ludsen Saint-Phar and Webster Registre, Cabinet Abdel-Razak & Associés
statutory regime comparable to specialised WIPO treaty implementations. 7.3 Factors in Determining Infringement In Haiti, whether use of a trade mark or a copyrighted work constitutes infringement is assessed primarily on the basis of substantive factual factors developed through law and practice, rather than detailed statu - tory tests. For trade marks, the central factor is the likelihood of confusion. In assessing this, the authorities consider, among other elements, the similarity of the signs, the similarity of the goods or services, the distinctiveness and recognition of the earlier mark, the nature of the relevant public, and the manner and context in which the sign is used in commerce. Bad faith, intent to mis - lead, and the overall impression created by the signs may also be taken into account. These factors are not exhaustively codified in statute but derive from general principles of trade mark law and judicial inter - pretation. For copyright, infringement is determined by examin - ing whether protected elements of a work have been reproduced, adapted, distributed, or communicated to the public without authorisation. Key factors include the originality of the work, the existence of access to the work by the alleged infringer, and the substan - tial similarity between the protected elements of the works. Consideration is also given to the scope of any authorisation or exception. As with trade marks, these criteria are not set out in a detailed statutory checklist but are applied by courts based on general copyright principles and international norms. 7.4 Prerequisites and Restrictions to Filing a Lawsuit In Haiti, there are no strict statutory prerequisites to filing a trade mark or copyright infringement lawsuit. Neither the issuance of a formal demand or cease- and-desist letter, nor prior mediation or alternative dispute resolution, is legally required before com - mencing proceedings, although such steps are com - monly taken in practice for strategic and evidentiary reasons. Trade mark registration is not a prerequisite to bringing a claim, but registration significantly facili - tates enforcement by establishing presumptions of
ownership and validity; copyright protection arises automatically upon creation and does not depend on registration. Restrictions on the assertion of trade mark or copy - right rights arise from general principles of civil law, unfair competition and abuse of rights. Rights hold - ers must act in good faith and may be exposed to liability where enforcement actions constitute abuse, bad faith or unfair competition, such as making know - ingly unfounded allegations, engaging in harassment or seeking to improperly exclude competitors. While Haiti does not have specific groundless threats pro - visions or a detailed competition-law-based misuse doctrine for intellectual property, courts may sanction abusive or anti-competitive conduct under general civil liability and commercial law principles. 7.5 Lawsuit Procedure Trade mark and copyright infringement proceedings are brought before the competent civil courts, typically the courts of first instance with territorial jurisdiction over the defendant or the place where the infringement occurred. There is no specialised intellectual property court or administrative tribunal with jurisdiction over infringement matters, and criminal courts may also be seized where the infringement constitutes a criminal offence under applicable law. Before filing a lawsuit, costs typically arise in con - nection with preliminary enforcement steps, such as drafting and sending warning or cease-and-desist let - ters, conducting investigations and evidence collec - tion, obtaining certified copies of registrations or offi - cial records, notarisation of documents, translations where required, and, in some cases, bailiff or expert fees. While the law does not expressly require repre - sentation by a lawyer, in practice parties in trade mark and copyright litigation are represented by attorneys, as court procedure and pleadings are formal and legal representation is effectively necessary. Foreign trade mark and copyright owners may bring infringement claims in Haiti. There is no nationality or domicile requirement to access the courts. For trade marks, registration in Haiti is not strictly required to bring an action, but a local registration provides stronger and more straightforward protection; foreign
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