HAITI Law and Practice Contributed by: Vanessa Abdel-Razak, Ludsen Saint-Phar and Webster Registre, Cabinet Abdel-Razak & Associés
9. Defences and Exceptions to Infringement 9.1 Defences to Trade Mark Infringement A range of defences may be raised against trade mark infringement, although they are not always exhaus - tively codified in statute and are largely derived from general trade mark principles, civil law and judicial practice. Common defences include priority and prior rights, where the defendant proves earlier use or ownership of a sign pre-dating the claimant’s rights; non-use or abandonment, where the claimant’s registration has not been genuinely used for a continuous period (gen - erally five years), leading to vulnerability to cancella - tion; licence or consent, where the use is authorised by the trade mark owner; and bad faith, where the claimant’s registration or enforcement is shown to be abusive or dishonest. Defences akin to fair use, such as descriptive use in good faith to describe charac - teristics of goods or services, as well as functionality, may also be raised where the sign consists of elements necessary for technical or commercial use. Use of one’s own name or trade name, absence of likelihood of confusion, and defences based on acquiescence, estoppel or abuse of rights under general civil law may also apply. While parody or satire is not expressly reg - ulated as a trade mark defence, arguments based on lack of confusion, freedom of expression or absence of commercial intent may be considered. These defences are partly reflected in statutory pro - visions, particularly those relating to non-distinc - tiveness, non-use and validity, and partly grounded in general civil law and unfair competition principles rather than detailed trade mark-specific statutes. Some defences, such as successful cancellation for non-use or lack of validity, may constitute a total bar to liability, while others, such as fair or descriptive use or acquiescence, may limit or defeat liability depend - ing on the circumstances and the evidence presented. 9.2 Defences to Copyright Infringement (Fair Use/Fair Dealing) There is no comprehensive, codified “fair use” doc - trine comparable to that found in some common law jurisdictions. Instead, permissible uses of trade marks
Bootlegging in Haiti generally refers to the unauthor - ised fixation, reproduction, distribution or commercial exploitation of live performances, audiovisual works or sound recordings, especially where recordings are made without the consent of the performer or rights holder. While Haitian law does not use highly detailed statutory definitions of bootlegging, such conduct is covered by copyright and neighbouring rights pro - visions, as well as general criminal and civil liability rules. Remedies include civil actions for injunctions and damages, seizure of illicit copies and, in serious or commercial cases, criminal sanctions against the infringing party. 8. Litigating Trade Mark and Copyright Claims 8.1 Special Procedural Provisions for Trade Mark or Copyright Proceedings There are no highly specialised procedural rules that apply exclusively to trade mark or copyright proceed - ings. Such cases are generally governed by ordinary civil procedure, with intellectual property disputes handled in the same procedural framework as other Holding a trade mark registration provides meaningful litigation advantages. A valid registration creates pre - sumptions of ownership, validity, and the registrant’s exclusive right to use the mark in relation to the goods or services covered, thereby shifting the burden to the alleged infringer to challenge validity or priority. While Haitian law does not establish an explicit incon - testability period after which all defences are barred, certain challenges, particularly those based on priority or ownership, become more difficult once a registra - tion is long-standing and uncontested. Copyright pro - tection does not depend on registration, but where a work is registered or deposited, it may facilitate proof of authorship and date of creation in litigation. 8.3 Costs of Litigating Infringement Actions The typical costs of bringing a trade mark or copyright infringement action to conclusion at first instance vary widely depending on the complexity of the case. commercial or civil matters. 8.2 Effect of Registration
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