Trade and Service Marks

– Law of July 17, 1954 on Trademarks, effective November 16, 1954, amended by Law of July 14, 1956.
– Decree of August 28, 1960, September 13, 1965 and September 24, 1970.

Membership in International Conventions

– Paris Convention for the Protection of Industrial Property, Stockholm Act, since July 1, 1958.
– Inter-American Convention of Washington (1929).
– Lisbon Agreement for the Protection of Appellations of Origin and their International Registration (1958), since September 25, 1966.
– Convention Establishing the World Intellectual Property Organization (WIPO), since November 2, 1983.
– WTO’s TRIPS Agreement, since January 30, 1996.

Filing

Applicant: any manufacturer, merchant or company.

Foreigners and nationals not living in the country: may apply through a registered Haitian lawyer.

Trademarks of foreigners: enjoy the same protection as Haitian trademarks.

Kinds of protection: the exclusive right of possession and use of a trademark belongs to the person who registers it.

Marks for services: can be protected (International Classification).

Novelty: determined mainly by publication.

Not registrable: immoral or scandalous figures, marks already registered or confusingly similar to registered trademarks or to commercial names.

National flags: not registrable. Municipal flags or escutcheons are not registrable either.

Names or portraits: unauthorized pictures or names of living persons are not registrable.

Association marks: not provided for, but are accepted.

Priorities: can be claimed under the Union Convention of Paris.

Classification: international.

Multi-class applications: possible, but a separate certificate of registration will be issued for each class.

Territory covered: Republic of Haiti.

Filing requirements for an application (to be sent to resident agent):
1. Power of attorney (not legalized);
2. 10 prints;
3. Certified copy of the priority document, if priority is claimed, translated into French (English version is accepted).

Examination

Amendment of application: amendments relating to the class of the products must be filed before publication. Amendments relating to the address of the applicant or the specification of the goods (keeping the same class) can be filed up to registration, unless an opposition is filed.

Examination: the Haitian authorities rely heavily on the publication and opposition procedures.

Opposition: persons who believe they have priority rights to a mark or who own a similar mark, for which they have prior rights, may file opposition. They must, however, apply simultaneously for the registration of their own mark, if it is not already registered. Opposition must be filed within two months of the date of publication in the Official Gazette.

Disputes about ownership: if several persons apply simultaneously for the registration of identical or similar marks, priority will be accorded to the party who was first to use the mark and the certificate of registration will be delivered to him with the losing party retaining all rights of cancellation in accordance with the general law.

Application kept secret: applications cannot be kept secret. Any new application must be advertised in the Official Gazette.

Appeal: when a ruling on the opposition is made by the Trademark Office, the losing party has ninety days to bring the matter before the Commercial Chamber of the Civil Court of Port-au-Prince.

Urgent registration: not provided for.

Provisional registration: not provided for.

Publication: in the Official Gazette “Le Moniteur”.

Correction of registration: can be filed at any time, but cannot relate to the mark itself, or to the class of the products. The list of goods cannot be extended, but it is permissible to limit the scope of goods covered.

Protection

Delivery of document: usually from eight to twelve months after the date of filing.

Beginning of protection: from the date of issuance of the certificate of registration, with priority from the date of filing.

Kind of property: registration gives exclusive rights of possession and use. The said rights are unassailable after five years.

Duration: ten years from the next day after expiration of the opposition term.

Renewal: a trademark can be renewed for ten years from the date of expiry of the original registration.

Latest term for renewal: the application for renewal must be filed before expiration of the original registration. After that time, a new application for registration is required and the owner of the lapsed mark has a period of priority of three months to re-register the trademark.

Modification of the mark: the mark cannot be modified.

Changes in the list of goods: the specification of goods can be limited, but not extended.

Compulsory character of registration: registration is compulsory for medicinal and pharmaceutical products.

User rights: any party having his place of business in Haiti or being a national of a state according similar rights to the nationals of Haiti, who, before the registration of a trademark, has used the mark in his business and still uses it actively, can file opposition or, after registration, bring a suit for cancellation. The said party will have to prove prior use of the mark in Haiti.

Obligation to use: within the first three months of the sixth year of registration or renewal, the registrant must file proof of use (orders from local merchants, bills of lading, consular or private invoices, or photocopies thereof, mentioning the mark, a local address and less than one year old at the time of filing in Haiti). Past this period, the registered owner of the mark will have priority to re-register the mark during the next three months.

Declaration of non-use: if the trademark is not used, the registrant, in order to keep a registration in force, must file a notarized declaration of justified non-use. Such a declaration must be filed within the first three months of the sixth year from registration or renewal. Nominal use, export, use at exhibitions and fairs are not considered as valid use. Past this period, the registered owner of the mark will have priority to re-register the mark during the next three months.

Marking of registered goods: compulsory for pharmaceutical and medicinal products only. In practice, however, this compulsory marking is replaced by the furnishing of proof to the Customs that the marks are registered or that registration has been applied for.

Text of marking: “Marque Déposée” (optional), “Marque Déposée en Haiti” (compulsory).

Assignment: a trademark registration can be assigned in whole or in part. If the assignment is made abroad, it must be legalized by the Consulate of Haiti.

Licenses: in order to be valid, licenses must provide that the party according the license has the right to control the quality of the products sold under the mark and that he must effectively exercise such control.

Registration at the Chamber of Commerce: registrations obtained at the Trademark Office must be recorded with the Chamber of Commerce.

Modification of Protection after Registration

Opposition to registered marks: there cannot be any opposition to a registered mark, only cancellation proceedings before the courts.

Compulsory licenses: not provided for.

Expropriation: not provided for.

Nullification: a registration can be nullified by the courts if there are prior rights to the mark, or if the mark was registered in violation of the law. The delay is five years.

Validation of invalidated marks: marks invalidated by the courts by non-renewal or by lack of five-year declaration remain invalidated.

Provision for restoration: there is no provision for the restoration of lapsed registrations. The registrants have to re-register.

Registration of invalidated marks: marks which have lapsed through non-renewal or lack of five-year declarations can be registered by any interested party after a lapse of three months.

Infringement and penalties: counterfeiting will be punished by a $100 fine; damages and costs can be awarded if the matter is brought before the Court of First Instance (Commercial Chamber).