Dismissal of the statement of claim without consideration under paragraph 2 of part 1 of Article 148 of the Arbitration Procedure Code: part 2

In one of the previous publications entitled "Dismissal of the Statement of Claim Without Consideration under Clause 2 of Part 1 of Article 148 of the Arbitration Procedure Code of the Russian Federation. Part 1" we have already analyzed certain grounds for leaving the statement of claim without consideration due to the plaintiff's failure to comply with the claim or other pre-trial procedure for settling the dispute with the defendant.

In this article, we will continue to consider cases of leaving the statement of claim without consideration under Clause 2 of Part 1 of Article 148 of the Arbitration Procedure Code of the Russian Federation.

It should be recalled that by virtue of Parts 1 and 5 of Article 4 of the Arbitration Procedure Code of the Russian Federation, each interested person has the right to apply to an arbitration court for the protection of its violated or disputed rights and legitimate interests.

At the same time, a number of disputes are referred to the arbitration court for resolution only after compliance with the pre-trial dispute settlement procedure.

This is due to the fact that the legislator seeks to encourage the parties to independently resolve conflicts, thereby reducing the burden on the courts.

Despite the apparent simplicity from a theoretical point of view, the application of this provision raises a significant number of practical questions, the wrong answer to which can sometimes lead to negative consequences for the plaintiff and his business.

Sending a claim letter to all correct addresses of the defendant

In one of the cases, the plaintiff was faced with leaving the statement of claim without consideration due to a formal approach to sending, in particular, the proposal of an interested person to a potential defendant.

Thus, paragraph 1 of Article 1486 of the Civil Code of the Russian Federation provides for sending an interested party's proposal to the right holder, as well as to the address specified in the State Register of Trademarks or in the relevant register provided for by an international treaty of the Russian Federation.

In case No SIP-1105/2025, the plaintiff's representative sent a proposal from an interested person to the right holder at the addresses known from the State Register of Trademarks and Service Marks (in other respects, as specified in the above-mentioned Article 1486 of the Civil Code of the Russian Federation). However, the defendant did not receive the offer at the specified addresses - the postal items were returned to the sender due to the expiration of the storage period.

As it turned out, as of the date of sending the pre-trial proposal, the address of the defendant known from the Unified State Register of Individual Entrepreneurs differed from the address of the right holder and the address for correspondence from the State Register. At the same time, the plaintiff did not send the proposal of the interested person to this address.

In support of the reasons why the pre-trial proposal was not sent to all known addresses (including the address from the Unified State Register of Individual Entrepreneurs), the plaintiff's representative explained that he did not have information about the address from the Unified State Register of Individual Entrepreneurs and did not request the relevant extract for the individual entrepreneur.

Meanwhile, the court noted that in the "truncated" extract from the Unified State Register of Individual Entrepreneurs, which is not difficult to obtain, the defendant's address indicates the constituent entity of the Russian Federation in which the defendant is registered. At the same time, such an entity was clearly different from the regions appearing in the extract for the trademark from the State Register.

Under these circumstances, the court emphasized that, with due diligence, the professional representative could notice the differences in the regions and subsequently request a full extract from the Unified State Register of Individual Entrepreneurs in order to obtain the current address of the right holder and properly comply with the pre-trial dispute resolution procedure.

At the same time, the court clarified that defects in sending an interested party's proposal cannot indicate non-compliance with the mandatory pre-trial dispute resolution procedure if it is proven that such an offer was actually received at one of the specified addresses (Ruling of the Intellectual Property Court dated 18.02.2026 in case No SIP-1105/2025).

In this context, the ruling dated 25.09.2025 in the case No SIP-1424/2024 deserves attention, in which the Intellectual Property Court pointed out the need to send an interested party's proposal to all the specified addresses. Therefore, the failure to send the proposal of the interested person to the address for correspondence and the failure to serve the defendant's legal address, which coincides with its address in the State Register, cannot indicate that the plaintiff complied with the pre-trial dispute settlement procedure.

At the same time, sending a new proposal to the defendant does not make up for the defects of the original proposal, since it is an independent proposal, according to which the period for filing a claim with the Intellectual Property Court runs from the moment it is sent.

Compliance with the deadlines established for compliance with the pre-trial procedure for resolving disputes

It was noted above that sending a new proposal to the defendant did not make up for the defects of the original proposal.

In case No SIP-167/2025, the Intellectual Property Court considered in detail the reasons why these defects cannot be filled by re-applying to the defendant with a proposal, as well as the issue of the deadlines established for compliance with the pre-trial dispute resolution procedure.

The Intellectual Property Court noted that the thirty-day period provided for by Article 1486 of the Civil Code of the Russian Federation for applying to the court, which begins to run after the expiration of the two-month period for waiting for the right holder's response to the proposal of the interested party, is not a procedural period, and therefore cannot be restored under the rules of Article 117 of the Arbitration Procedure Code of the Russian Federation.

In addition, the thirty-day period for applying to the court provided for in paragraph 1 of Article 1486 of the Civil Code of the Russian Federation is not a limitation period (including a special one) in the sense given to this institution by Chapter 12 of the Civil Code of the Russian Federation, in connection with which it cannot be restored in the manner provided for by Article 205 of the Civil Code of the Russian Federation, is not suspended (Article 202 of the Civil Code of the Russian Federation) and is not interrupted (Article 203 of the Civil Code of the Russian Federation).

Article 1486 of the Civil Code of the Russian Federation also does not establish a mechanism for restoring such a period.

The period provided for by Article 1486 of the Civil Code of the Russian Federation, within which an interested person has the right to apply to the court with a corresponding statement of claim, is a necessary element of the mandatory pre-trial procedure for resolving disputes on claims for early termination of legal protection of a trademark.

Within the meaning of paragraph four of paragraph 1 of Article 1486 of the Civil Code of the Russian Federation, an interested person may exercise his right to apply to the court only within thirty days after the expiration of the two months specified in this rule.

The Intellectual Property Court drew attention to the fact that instead of the institution of restoration of the period established by paragraph four of paragraph 1 of Article 1486 of the Civil Code of the Russian Federation, paragraph 1 of this article provides for another mechanism that the plaintiff is entitled to use in case of missing the deadline - the institution of re-sending the proposal of an interested person (paragraph three of paragraph 1 of Article 1486 of the Civil Code of the Russian Federation). After re-sending the proposal of the interested party, the plaintiff has a new opportunity to file a statement of claim at all necessary addresses.

The establishment of a time limit for the subsequent application to the court for the resolution of a dispute in respect of which a mandatory pre-trial settlement procedure has been established is carried out by the federal legislator taking into account the goal of ensuring the effectiveness of judicial protection of the rights and legitimate interests of interested parties, which implies the timeliness of recourse to the court and compliance with a reasonable period of legal proceedings, which also ensures legal certainty, predictability and stability of legal conditions for the subjects of the relevant legal relations (rulings of the Constitutional Court of the Russian Federation dated 20.07.2021 No 1377-O, dated 30.05.2023 No 1187-O, dated 28.03.2024 No. 739-O, etc.).

Thus, this legal regulation, taking into account that an offer to the right holder of a trademark can be sent by an interested person repeatedly, allows to exclude a situation in which the right holder, after a previous attempt at pre-trial settlement of the dispute, would remain under the threat of a lawsuit against him for an indefinite time on the early termination of the legal protection of the trademark, and thereby ensures a balance of interests of participants in civil turnover.

Such a legal approach is set out in the ruling of the Constitutional Court of the Russian Federation dated 27.03.2025 No 728-O (Ruling of the Intellectual Property Rights Court dated 18.07.2025 in the case No SIP-167/2025).

Sending an offer from an interested party by e-mail

In the context of digitalization of business turnover, the issue of the admissibility of attempts to pre-trial dispute resolution by e-mail is of particular importance.

Thus, according to the explanations of the Plenum of the Supreme Court of the Russian Federation set out in paragraph 13 of the Resolution of 22.06.2021 No 18 "On Certain Issues of Pre-Trial Settlement of Disputes Considered in Civil and Arbitration Proceedings", as a general rule, sending an appeal using an information and telecommunication network (for example, by e-mail, in social networks and instant messengers) indicates compliance with the pre-trial dispute settlement procedure only if such a procedure is established by a regulatory legal act, explicitly and unambiguously provided for in the contract, or this method of correspondence is a common established business practice between the parties and previously the exchange of correspondence was carried out in this way, among other things.

When resolving the issue of whether the fact of sending an application using an information and telecommunication network took place, admissible evidence will be, among other things, printouts of materials posted on such network (screenshot) made and certified by the persons participating in the case, indicating the address of the Internet page from which the printout was made, as well as the exact time of its receipt (Articles 55 and 60 of the Civil Procedure Code of the Russian Federation, Articles 64 and 68 of the Arbitration Procedure Code of the Russian Federation).

Thus, judicial practice generally allows the use of e-mail as an appropriate way to send a claim, but subject to a number of conditions specified above.

However, paragraph 30 of Resolution No 18 expressly states that non-compliance with the pre-trial procedure established by Article 1486 of the Civil Code of the Russian Federation is, among other things, the sending of an offer by the interested party by e-mail, and not to the postal address of the right holder.

This is based on the fact that Article 1486 of the Civil Code of the Russian Federation provides for the need to send to the right holder, as well as to the address specified in the State Register, and does not contain provisions on the possibility of sending a pre-trial proposal using an information and telecommunication network.

For example, in case No SIP-645/2021, the Presidium of the Intellectual Property Court noted that as evidence of compliance with the mandatory pre-trial dispute settlement procedure, the plaintiff attached a copy of the pre-trial proposal sent to the e-mail address to the statement of claim, which, due to the above explanations of the highest court, cannot testify to the plaintiff's compliance with the pre-trial dispute settlement procedure, taking into account the circumstance that there is no evidence of receipt of this e-mail in the case materials (Resolution of the Presidium of the Intellectual Property Court dated 15.07.2022 in case No SIP-645/2021).

In another case, the Intellectual Property Court in the case of the Intellectual Property Court did not accept the plaintiff's argument that the defendant had received an offer from an interested person sent to the e-mail address indicated on the defendant's website on the Internet, also indicating that such a method of sending an offer could not indicate compliance with the pre-trial dispute settlement procedure, since the provisions of Article 1486 of the Civil Code of the Russian Federation did not provide for sending an offer by e-mail of the right holder.

At the same time, in this case, the defendant denied the fact of receiving the offer of the interested party by e-mail, which clearly shows the validity of the above statement (Ruling of the Intellectual Property Court dated 13.05.2024 in case No SIP-946/2023).

Conclusion

Leaving the statement of claim without consideration due to non-compliance with the pre-trial procedure is an important procedural mechanism aimed at encouraging the parties to out-of-court settlement of disputes.

At the same time, this article has once again shown that the pre-trial procedure is not a formal procedure, but a full-fledged stage of the protection of rights, the quality of which largely determines the success of the trial.