Online trade in Russia is on the rise: in 2023 it amounted to 6.4 trillion rubles, but further increased by 41% in the first half of 2024 constituting 3.9 trillion rubles. 

A substantial part of goods offered online is of Chinese origin due to their decent quality and competitive price. As some Western companies  left Russia in view of the current political situation and related sanctions, importation from China or other countries of the region became even more important for meeting local consumer demand.   

For instance, one of the largest Russian marketplaces Ozon has opened a representative office in China at the end of 2022 in terms of their international division “Ozon Global”. By the end of 2023 the number of Chinese sellers on the platform rose from 10,000 to 100,000.

Obviously, extremely rapid growth of the online sales and, in particular, sales on marketplaces, leads to the increase of offers of fake goods and IP infringements, as well as triggers the growth of legal issues related to the responsibility of sellers and marketplaces. At the same time, currently there is no separate comprehensive law regulating sales on the marketplaces. 

Operation of marketplaces in Russia is regulated by various provisions of different laws, such as the Civil Code of the Russian Federation, Law “On the Protection of Consumer Rights”, Federal law “On Protection of Competition”, Government resolutions and other by-laws. They contain basic principles of contractual relations, define the marketplace and regulate responsibility issues. 

According to the provisions of the Law “On Protection of Consumer Rights” marketplaces are defined as the aggregators of information on goods or services in a form of software or Internet website, which allow to obtain information on goods/services, enter into an agreement with the seller and purchase them. The owner of a marketplace must provide information on his company and service, as well as information on the sellers.

As a general rule, in case incorrect or incomplete information on the goods provided on the marketplace caused losses to the consumer, the marketplace owner shall be held liable. However, if this information was provided by the seller and it was not amended by the owner of the marketplace, the latter shall be exempt from  liability.

Marketplaces and sellers enter into contractual relations considering the legislation outlined above, but the agreements between the parties vary. Some platforms only provide services of publication of the seller’s offers, arranging delivery and documents flow, others may act on behalf of the sellers and retain a percentage of sales.

The agreements between the parties may regulate liability issues, in case the offer of the seller leads to an infringement, such as unauthorized use of third parties’ IP rights. As the online platform acts as an intermediary, obviously, it can be held liable for the infringing listings.

Russian Civil Code contains provisions regulating the liability of the information intermediaries (internet hosting and service providers, domain administrators, social media, etc.), which apply to the marketplaces. As per the Article 1253.1 of the Civil Code, internet hosting providers and other information intermediaries can be held liable for IP infringements except in cases where they can prove that:

● they do not initiate the transmission of data;

● they do not modify data in the process of their transmission;

● they were not and should not have been aware of the fact that the content is infringing;

● on receipt of a written notice of the rights holder containing links to the infringing content, they made all necessary actions to cease the infringement.

The liability of the information intermediaries differs from the standard liability of the IP infringers: it is possible to claim removal or restriction of access to infringing content from any intermediary; however, compensation for infringement may be claimed only if the intermediary’s guilt is established. This approach was confirmed by the Ruling of the Plenum of the Russian Supreme Court No. 10 of 23 April 2019.

Under the Russian laws, IP infringements may result in civil, administrative or criminal liability. However, pre-judicial measures, such as warning letters and related negotiations are very common, especially with regard to online offers. 

In case counterfeit goods are being sold on a marketplace, takedown notices can be efficient for the IP owners, and they can be addressed not only to the sellers, but also to the marketplace management. Several companies also offer automatic systems of analyzing the online market and sending numerous takedown notices to the infringers and/or marketplaces. While some marketplaces may delay the response to the IP owner or refer to the sellers directly, quite often they are being quick and cooperative with elimination of IP infringements.

A court action can be filed against a marketplace, but its success would significantly depend on the role of the marketplace in the sales of goods. If the platform is selling potentially counterfeit products directly, there can be reasonable chances to bring such marketplace to liability. However, if it acts only as information intermediary and provides infrastructure for the offers of outside sellers, it can be more challenging for the IP owners to bring such marketplace to liability and receive compensation for IP infringements. The perspectives of a particular court action would depend on the circumstances of the case. 

In 2022, the biggest Russian marketplaces Ozon, Wildberries and Yandex Market created a system for exchanging information about sellers of counterfeit products. This system is aimed at collecting information about offers of counterfeit goods, as well as information about the seller and documents confirming the infringement. Having detected counterfeit, the marketplace is supposed to block it. If the same seller is noticed on another trading platform, the latter can request documents from the seller and, if they are missing or unreliable, also  block that seller. 

According to Federal Antimonopoly Service of Russia, in the first quarter of 2024 the marketplaces have blocked more than 2 million listings of infringing goods. Different trade-related institutions regularly bring up initiatives on fighting counterfeits on online market. 

In the absence of comprehensive regulation of marketplaces, several bills are being worked on in Russia. In March 2024, a bill “On state regulation of trade activities of aggregators of information about goods in the Russian Federation” and on amendments to the Federal Law “On the fundamentals of state regulation of trade activities in the Russian Federation” was submitted to the lower house of parliament. The new regulations are supposed to apply not only to platforms, but also to sellers and operators of delivery points. Such initiatives are carefully studied and discussed by the market players, and in particular, marketplaces, which always react to any attempts to over-regulate their activities. To some extent, indirectly, the provisions of the bill are intended to regulate and facilitate the fight against the circulation of counterfeit products. However, we believe that the IP owners are looking forward to seeing not only more active work of the enforcement bodies in the future, but also a more profound and uniform regulation of the cooperation process between IP owners and various e-commerce platforms.