News

We previously covered the Mir Hobby case before the Constitutional Court of the Russian Federation, where the constitutionality of the rules on information intermediaries (Article 1253.1 of the Civil Code of the Russian Federation) was under review. On June 16, the Court issued its Ruling and found all contested provisions to be consistent with the Constitution. At the same time, the Court provided an interpretation that may significantly affect disputes involving marketplaces. Moreover, the Mir Hobby case has been remanded for reconsideration, and in our view, the company still has strong chances of success.

What conclusions did the Constitutional Court reach?

1. As a general rule, marketplace services related to the sale of goods (storage, transportation, advertising, payment processing, etc.) do not in themselves constitute an independent infringement and do not exclude the status of an information intermediary. However, the combination of such activities may indicate involvement in the infringement of intellectual property rights and may result in joint liability with the seller.
2. Representations in agreements between sellers and marketplaces regarding non-infringement of third-party rights (Article 431.2 of the Civil Code) create a rebuttable presumption of excusable ignorance, which may release the intermediary from liability.
3. If a right holder repeatedly identifies a similar product listing of the same seller after filing a complaint, the marketplace is not exempt from liability, as the presumption of excusable ignorance is considered rebutted.
4. Marketplaces are required to detect and prevent obvious infringements, which may be indicated, in particular, by abnormally low prices and imitation of well-known brands.
5. In a complaint, the right holder must confirm the existence of the protected object and the exclusive right. The fact of infringement is presumed upon filing the complaint and may be rebutted by the seller if there are lawful grounds for use. At the same time, the marketplace is obliged to forward the complaint to the seller.
6. As a rule, the right holder is entitled to request only temporary blocking of a product listing. Permanent blocking requires a court decision. Otherwise, the marketplace or the seller may bring a claim for damages. In certain cases, the right holder may also incur public-law liability (e.g., for unfair competition). An exception applies where recourse to a court is impossible or difficult (for example, due to foreign jurisdiction). In such cases, permanent blocking without a court decision may be allowed.
7. If a complaint is found to be unfounded, the marketplace must issue a reasoned written refusal. Such refusal may be challenged and may serve as grounds for holding the marketplace liable as an information intermediary.
8. Blocking a product listing after the right holder has filed a court claim may also serve as grounds for liability.
9. Ignoring court requests by the marketplace (e.g., regarding sales volumes) may be interpreted as an attempt to conceal infringement and may result in liability.
10. The right holder is entitled to request the blocking of a seller’s account in cases of repeated intellectual property infringements.

Conclusions

New risks arise for right holders, including claims for damages from sellers and other right holders in connection with temporary blocking if it is not confirmed by a court. Courts still need to develop approaches to calculating lost profits. In our view, linking such calculation solely to the sales volume of the blocked listing is not always correct, as it may lead to unjust enrichment where unsold goods remain. At the same time, if the goods have lost their consumer properties (e.g., due to expiration), the risk of recovering lost profits increases significantly.

An open question remains whether courts should assess the validity of the initial complaint in such disputes. It is очевидно that claims will be satisfied in cases of abuse of rights (including by “patent trolls”). However, formally, the Ruling does not exclude liability of bona fide right holders for failure to confirm blocking through court proceedings.

Practice may also shift towards simplifying the imposition of liability on information intermediaries. Marketplaces will no longer be able to rely on lack of knowledge in the presence of obvious and systematic infringements by sellers. At the same time, right holders have gained an additional tool—the ability to request blocking of accounts of bad-faith sellers.

It is likely that marketplaces will tighten their internal policies and more actively block both product listings and seller accounts.

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