Marketplace immunity shaken: the sword of Themis in Resolution No. 39-P of the Constitutional Court of the Russian Federation has split the shield of the "information intermediary"

The article was first published on the ZIPDetect website.

We all understand that the era when counterfeit goods were sold exclusively at street markets is long gone. Today, the main hotspot for counterfeit trade is online marketplaces. The time it takes for a counterfeit product to end up in a consumer’s shopping cart is measured in seconds, while the speed at which platforms respond to complaints from intellectual property rights holders is still measured in days, weeks, and sometimes even months.

One of the issues I would like to address today is this dangerous imbalance. On the one hand, we see highly sophisticated platforms that use artificial intelligence and neural networks to sell products to consumers. On the other hand, when it comes to protecting intellectual property rights, these very same platforms suddenly become “mere information intermediaries” that “cannot be expected to know” about infringements and seek refuge in legislative loopholes.

Marketplaces frequently rely on Article 1253.1 of the Civil Code of the Russian Federation as a universal defense, positioning themselves as “information intermediaries” in an effort to avoid financial liability for the actions of their sellers. They argue that they neither initiate the transmission of infringing content nor can be aware of violations until a court decision has been issued.

In modern legal practice, the term “marketplace” generally refers to an electronic platform that serves as a venue for businesses to publish commercial offers to an unlimited number of potential buyers. The owner of such a platform provides its technical and administrative maintenance while not acting as the direct seller of the goods offered through it. The marketplace operator’s primary function is to ensure the platform’s functionality and provide counterparties with a range of additional services, including payment processing, logistics, and warehousing.

Put simply, a marketplace is an online storefront that helps companies and entrepreneurs showcase their products to millions of potential customers. The platform owner is not engaged in the sale of goods itself; rather, it creates and develops the digital infrastructure through which such sales occur. In essence, the operator acts as a service provider for sellers, handling technical support, payment processing, inventory storage, and order fulfillment.

It is precisely the fact that a marketplace does not itself sell the goods that allows it to qualify as an information intermediary. This status enables it to incur liability only where fault can be established, whereas virtually all other participants in commercial activity are subject to liability regardless of fault.

Why Marketplaces Rely on Information Intermediary Status

Under the legal definition set out in Article 1253.1(1) of the Civil Code of the Russian Federation, the following entities qualify as information intermediaries:

- a person or entity that transmits material through an information and telecommunications network, including the Internet (such as telecommunications operators and hosting providers);

- a person or entity that provides the opportunity to place material or information necessary for obtaining access to such material through an information and telecommunications network (including online platforms for video, music, literature, and other content, social networks, and marketplaces);

- a person or entity that provides access to material within such a network (search engines).

An information intermediary is exempt from monetary liability provided that both of the following conditions are met simultaneously:

- it did not know and should not have known that the use of the relevant intellectual property object or means of individualization contained in the material was unlawful;

- upon receiving a written notice from the rights holder alleging infringement of intellectual property rights, it promptly took the necessary and sufficient measures to terminate the infringement.

At the same time, claims seeking the cessation of infringement may be brought against an information intermediary in any event (Article 1253.1(4) of the Civil Code of the Russian Federation).

Whether a particular person or entity qualifies as an information intermediary is determined by the court, taking into account the nature of the activities carried out by that person or entity.

The burden of proving that material containing intellectual property objects or means of individualization was uploaded to a website by third parties rather than by the website owner - and that the website owner therefore qualifies as an information intermediary - rests with the owner of the website, online platform, mobile application, or other relevant service.

When considering cases in which defendants invoke information intermediary status, courts must examine, among other things:

- whether the information intermediary derived profit from activities involving the use of third parties’ exclusive rights conducted by users of its services;

- whether restrictions exist regarding the volume of information that may be uploaded, its availability to an indefinite number of users, whether the user agreement imposes an obligation on users to comply with Russian law when uploading content, and whether the provider retains an unconditional right to remove unlawfully posted content;

- whether technological features or software facilitating infringement of exclusive rights are absent, and whether effective technological measures are in place to prevent, detect, monitor, or remove infringing content;

- whether the information intermediary modified, adapted, or otherwise processed the disputed material.

How the Problem of Abuse Emerged

Unfortunately, granting marketplaces a special legal status has led to numerous forms of abuse, most notably the excessive delays in reviewing complaints submitted by intellectual property rights holders, often exceeding one month.

Marketplaces frequently argue that the law does not establish specific deadlines for responding to such complaints. As a result, the review process may take weeks and, in some cases, even months. Even where there are obvious indicators of counterfeiting - such as prices ten times lower than the market average or hundreds of negative customer reviews - platforms often remain passive, placing the entire burden of proof on the rights holder.

While a complaint is under review, the seller frequently has enough time to sell out the infringing inventory and simply reappear under a new account. In many cases, the platforms’ internal complaint-handling mechanisms operate with little transparency. Sellers may submit forged licensing agreements, counterfeit certificates, or other dubious documentation, which marketplaces accept without conducting meaningful verification, considering their obligations fulfilled. Alternatively, the platform may take the position that the dispute is “too complex” for internal moderation and therefore refrain from taking action, unwilling to assume responsibility for deciding whether a product listing should be removed or blocked.

As a result, rights holders are often left with no alternative but to seek judicial protection. However, even proceedings before a court of first instance typically require at least two months, and only if the claim is considered under simplified procedures. Cases examined under ordinary litigation procedures generally take six to eight months on average at the first-instance level alone.

Moreover, instead of actively assisting in the objective and comprehensive resolution of disputes - for example, by providing information regarding sales volumes on the platform, inventory levels, the period during which the infringing activity occurred, the suppliers of counterfeit goods, and other data necessary to establish the supply chain of such products - marketplaces frequently distance themselves from the process and decline to provide such information, claiming that they do not possess it.

The “Mir Khobbi” Case and the Position of the Constitutional Court of the Russian Federation

This state of affairs ultimately led LLC Mir Khobbi to file a complaint with the Constitutional Court of the Russian Federation challenging the constitutionality of paragraphs 1 and 3 of Article 1253.1 of the Civil Code of the Russian Federation. The complaint arose from uncertainty as to whether the challenged provisions - which exempt information intermediaries from liability for intellectual property infringements committed by third parties through the sale of goods on marketplaces - are consistent with the Constitution of the Russian Federation.

The applicant argued that the contested provisions contradict Articles 1(1), 8(1), 17(3), 34(2), 35(1) and (2), 44(1), 45, 46, and 55(3) of the Constitution of the Russian Federation. According to Mir Khobbi, these provisions are applied in practice in a manner that allows marketplace operators to be recognized as information intermediaries despite their active involvement in the sale and distribution of goods. The applicant further contended that the existing legal framework establishes an excessively low evidentiary threshold for proving that a marketplace operator has satisfied the conditions necessary for exemption from liability.

On 16 June 2026, the Constitutional Court of the Russian Federation issued Resolution No. 39-P in the case concerning the constitutionality of paragraphs 1 and 3 of Article 1253.1 of the Civil Code of the Russian Federation (the “Resolution No. 39-P”). The Court held that paragraphs 1 and 3 of Article 1253.1 are consistent with the Constitution of the Russian Federation insofar as, according to their constitutional and legal meaning within the existing regulatory framework, they permit the owner of a marketplace (digital platform) to be recognized as an information intermediary even where, in addition to providing the technical ability to place materials (information) within an information and telecommunications network, the platform operator also provides other services necessary for the functioning of the marketplace.

At the same time, the Constitutional Court made a number of important findings which, in my view, should fundamentally influence the adjudication of cases involving infringements of intellectual property rights committed through the unlawful use of intellectual property assets in the course of placing goods into commercial circulation via marketplaces.

The clarifications provided in Resolution No. 39-P should encourage marketplace operators to take a more proactive role in preventing intellectual property infringements and in ensuring the prompt and effective removal of unlawful content and infringing products once violations have been identified.

Key Findings of Resolution No. 39-P

I would like to focus on what I consider to be the most significant conclusions set out in Resolution No. 39-P.

First and foremost, attention should be paid to the Constitutional Court’s finding that the mere recognition of a person as an information intermediary, based on the nature of its activities, and the absence of fault on its part do not automatically constitute absolute grounds for exemption from liability for intellectual property infringement.

As noted above, paragraph 3 of Article 1253.1 of the Civil Code requires the simultaneous fulfillment of several conditions. In particular, an information intermediary is exempt from liability only if it did not know and should not have known that the use of an intellectual property object or means of individualization contained in material posted on an information and telecommunications network was unlawful. Thus, not only actual lack of knowledge (“did not know”) is relevant, but also excusable ignorance (“should not have known”).

Indeed, a seller’s representation that the goods it offers do not infringe the intellectual property rights of third parties gives rise to a presumption that the marketplace operator was unaware of any unlawful use of intellectual property by the seller.

At the same time, such a representation may be rebutted by a statement or complaint submitted by the rights holder whose rights have been infringed. Such a complaint may serve as evidence that the marketplace operator became aware that its counterparty’s activities infringed the intellectual property rights of a third party.

Moreover, the conclusion that a marketplace operator should have known about the unlawful use of an intellectual property object may be drawn where, for example, a seller repeatedly infringes rights relating to the same intellectual property assets through the marketplace. In particular, where the marketplace operator has previously taken measures against a seller following a complaint from a rights holder or pursuant to a court decision in proceedings to which the operator was a party, the operator cannot subsequently invoke lack of knowledge if the same seller commits further infringements involving the same intellectual property rights. Any other approach would effectively allow sellers to resume infringing activities after each enforcement action taken by the marketplace.

The Constitutional Court also emphasized that one of the conditions for exemption from liability is the timely adoption of necessary and sufficient measures to terminate the infringement. Such measures must be triggered by a written complaint from the rights holder identifying the webpage and/or internet address where the infringing material is located.

Subparagraph 2 of paragraph 3 of Article 1253.1 of the Civil Code provides that such a complaint must originate from the rights holder and contain an allegation that the rights holder’s intellectual property rights have been infringed on specific pages of a website operated by the information intermediary.

At the same time, as correctly noted in Resolution No. 39-P, the provision does not regulate whether the information intermediary must verify the merits of the complaint, including whether the complainant actually owns the relevant intellectual property rights and whether the seller possesses lawful grounds for using the disputed intellectual property object.

This approach is consistent with the position traditionally adopted by courts in intellectual property disputes. Under established judicial practice, the claimant bears the burden of proving ownership of the relevant exclusive rights and the fact that the defendant used the protected object. The defendant, in turn, bears the burden of proving that its use of the disputed intellectual property complies with applicable law.

Nevertheless, requiring a marketplace to conduct such verification effectively places it in the role of an arbiter. On the one hand, it must prevent intellectual property infringements; on the other hand, it must ensure that complaint procedures are not abused for purposes contrary to their intended function.

However, marketplaces possess no statutory powers to investigate factual circumstances. This reality gives rise to a number of procedural peculiarities, which are also discussed in Resolution No. 39-P.

In particular, the Constitutional Court stated that the evidence submitted by the complainant must prima facie establish the existence of exclusive rights in the relevant intellectual property object. For this purpose, any evidence that would ordinarily be accepted by a court may be relied upon.

The seller’s infringement, in turn, may be established by a substantiated complaint from the rights holder combined with the absence of evidence demonstrating lawful use of the disputed intellectual property object. The marketplace operator is required to request such evidence from the seller. Importantly, the seller’s mere disagreement with the allegation of infringement is insufficient to rebut an otherwise substantiated complaint.

Upon receiving a complaint concerning infringement of intellectual property rights, the marketplace should suspend the display of information relating to the disputed goods for a period sufficient to enable the complainant to seek judicial protection of its rights.

In doing so, the marketplace operator does not conclusively determine that an infringement has occurred. Rather, it identifies the existence of indications of infringement. The Constitutional Court drew an analogy to interim measures granted by the Moscow City Court in copyright and related-rights disputes concerning online content pursuant to Article 144.1 of the Civil Procedure Code of the Russian Federation.

If the rights holder fails to commence court proceedings within a reasonable period of time, or if the court ultimately rejects the claim as unfounded, the marketplace operator and/or seller may seek compensation for losses caused by the suspension or removal of product listings. Such losses may be recovered from the person whose complaint prompted the measures, except where the measures were implemented pursuant to a court order.

This mechanism is intended to address situations where rights holders submit unfounded complaints aimed not at protecting legitimate rights but at obstructing the activities of competitors. Such conduct may constitute an abuse of rights and a form of unfair competition.

The Constitutional Court also addressed circumstances in which a rights holder may require a marketplace to permanently cease displaying information about goods and facilitating their sale, particularly where subsequent judicial protection is impossible or excessively difficult. Examples include situations where the competent court is located in a foreign jurisdiction or where the same seller repeatedly infringes the rights of a particular rights holder through the marketplace, even if individual infringements are removed following complaints.

The issue of foreign defendants is far from theoretical. Many marketplace sellers are based in CIS countries and China, making litigation difficult, time-consuming, and expensive. Such sellers frequently provide inaccurate or incomplete registration information. Because marketplace operators generally lack access to foreign commercial registries, they are often unable to verify the accuracy of such information.

As a result, when a rights holder initiates proceedings in Russia, the court may be unable to identify the infringer or properly notify it of the proceedings, making effective judicial protection impossible.

For example, in Case No. A40-116653/24, the product listing contained a seller designation reading “TULIPS – Xixianxinquqinhanxinchengchibeilongbaihuodian shanxishengxianyangshiweichengqu CN, Xianyang.” No corporate name, tax identification number, registration number, or legal address was provided.

When considering a motion to join the seller as a co-defendant, the court refused the request, finding that the claimant had failed to establish the procedural prerequisites for joinder under Article 46(2) of the Arbitrazh Procedure Code. The court also noted that the motion lacked the information concerning the proposed defendant required by Article 125(2)(3) of the same Code.

It should also be noted that marketplaces have traditionally provided little or no reasoning when rejecting complaints from rights holders. According to Resolution No. 39-P, a marketplace operator remains entitled to reject a complaint that is manifestly unfounded. However, in such circumstances it must provide the complainant with a written explanation setting out the reasons for its decision.

If the rights holder disagrees with the refusal, it may bring legal proceedings seeking to hold the marketplace operator liable for the infringement.

At the same time, the marketplace operator must bear in mind that a court may refuse to exempt it from liability if it concludes that the operator’s refusal to act on the complaint was unjustified.

The Constitutional Court further acknowledged that rights holders, sellers, and marketplaces alike currently lack clear guidance as to what measures should be regarded as “necessary and sufficient” and within what timeframe such measures must be implemented. Consequently, these questions are often resolved at the discretion of marketplace operators themselves.

Judicial practice likewise remains inconsistent. Some courts rely on Article 15.7(6) of the Federal Law “On Information, Information Technologies and Information Protection,” which requires website owners to remove information identified in a rights holder’s complaint within twenty-four hours of receiving the complaint or supplementary information. Other courts assess timeliness on a case-by-case basis and have accepted significantly longer response times as compliant.

Resolution No. 39-P nevertheless provides important clarification. The Constitutional Court stated that, absent delays attributable to the rights holder, any attempt by a marketplace operator to argue that its measures were timely when they were adopted only after court proceedings had already commenced not only contradicts the purpose of the legislation but also calls into question the operator’s neutrality with respect to the infringement.

Finally, rights holders have historically encountered significant difficulties obtaining evidence necessary for the proper adjudication of disputes, including information concerning the quantity and value of counterfeit goods sold, the duration of the infringement, and the suppliers involved in distributing counterfeit products.

Although courts frequently granted motions compelling the production of such evidence, sellers understandably refused to disclose commercially sensitive information. Marketplace operators, despite their obligation to remain neutral and comply with court orders, often ignored such requests or argued that they were unable to identify the disputed goods and therefore could not provide the requested information.

This situation began to change when the Intellectual Property Rights Court, overturning decisions of lower courts and remanding cases for reconsideration, criticized trial courts for requesting evidence from marketplaces and then proceeding to decide cases despite the absence of that evidence.

The cassation court reminded lower courts that arbitrazh courts possess procedural mechanisms both to obtain requested evidence and to impose sanctions for non-compliance under Article 66(9) of the Arbitrazh Procedure Code - sanctions that, in those cases, had not been imposed on marketplace operators despite their failure to comply.

The Constitutional Court likewise addressed this issue, holding that where a marketplace ignores a court order requiring the disclosure of information necessary for the proper resolution of a dispute, such conduct may not only expose it to public-law sanctions but may also support an inference that the marketplace has an interest in concealing the infringement. In turn, this may serve as grounds for denying the marketplace the liability exemption provided by Article 1253.1 of the Civil Code.

What Will Change in Practice

Overall, an analysis of Resolution No. 39-P demonstrates that the Constitutional Court of the Russian Federation has addressed many of the most pressing and problematic issues faced by rights holders seeking to protect their intellectual property rights. The Court also identified a number of legislative gaps and ambiguities that had previously enabled marketplace operators to evade liability despite their apparent inaction in combating infringements.

It is to be hoped that Resolution No. 39-P, together with Federal Law No. 289-FZ of 31 July 2025, “On Certain Issues of Regulation of the Platform Economy in the Russian Federation,” which will enter into force on 1 October 2026, will provide a solid legal foundation for regulating relationships among rights holders, marketplace operators, and sellers in matters involving the use of intellectual property assets.

Equally importantly, the courts should now have clearer guidance as to when a marketplace was genuinely acting as an information intermediary and when, by contrast, it abused that status or simply failed to take appropriate action. In such circumstances, the marketplace operator should be held liable alongside the seller of counterfeit goods.

In conclusion, I would like to emphasize that online counterfeiting is not a problem affecting a single brand or a single country - it is a challenge confronting the entire digital economy. Effective enforcement against counterfeit goods will be possible only if we move beyond a system based primarily on manual complaints and adopt automated monitoring mechanisms, coupled with a clear legislative framework imposing responsibility on all participants in electronic commerce, including marketplace operators.

Otherwise, we will continue to address the consequences of counterfeiting rather than its root causes.

The article was first published on the ZIPDetect website.