Marketplaces will no longer be just platforms: who is now responsible for counterfeits?

Until recently, in disputes over counterfeit goods on a marketplace, the seller was usually the primary defendant. The platform was primarily viewed as an information intermediary that provides the technical capability to list goods and complete a transaction.

However, the development of platform commerce is gradually changing this model. In June 2026, the Constitutional Court of the Russian Federation clarified the circumstances under which a marketplace can be held liable for infringing the intellectual property rights of third parties. Starting October 1, 2026, new rules for verifying information in product listings will come into effect for operators of intermediary digital platforms. From March 1, 2027, a separate mechanism for confirming the right to use a trademark will be introduced.

This does not mean that marketplaces are now automatically responsible for every counterfeit item. Liability still depends on the circumstances of the specific violation. Let's consider three main scenarios: when the seller is liable, when the platform may be held liable, and what role the right holder themselves plays in this system.

1. Counterfeit goods listed by the seller: the seller is liable.

The first and most obvious scenario is when a seller independently lists a product on a marketplace that infringes on the exclusive rights of the right holder.

For example, a seller offers products with someone else's trademark without the appropriate right or sells a product in the production of which copyrighted works were used illegally.

In such a situation, it is the seller who is the direct infringer. The right holder may bring claims against them for the protection of exclusive rights, including demanding the cessation of the infringement and the application of liability measures provided by law.

However, to successfully resolve the problem, it is not enough to simply establish the fact of the violation.

What is important for the right holder:

• identify the seller and record the violation;

• preserve information about the product listing, seller, price, URL, and other circumstances of the violation;

• determine exactly which rights have been violated;

• send a reasoned appeal to the marketplace;

• monitor whether the same product reappears.

The final stage becomes particularly important in a situation where, after one listing is removed, a similar offer appears again.

2. The platform knew about the violation: the marketplace may be held liable

The second scenario relates directly to the marketplace’s own conduct.

Resolution No. 39-P of the Russian Constitutional Court, dated 16 June 2026, specifically addresses situations in which a digital platform operator invokes its status as an information intermediary that is not liable for infringements of intellectual property rights committed on its platform. The Constitutional Court held that exemption from liability is not automatic: to qualify for it, the platform operator must demonstrate that it has taken the necessary and sufficient measures to stop the infringement.

At the same time, the Court’s position does not imply that a marketplace is required to proactively examine every product listing for potential intellectual property infringements. The mere absence of prior checks does not, in itself, mean that the platform was aware of an infringement.

However, the situation changes when the platform has grounds to know that an infringement has occurred. One such circumstance may be repeated infringement by the same seller involving the same intellectual property. In such cases, the marketplace must exercise particular diligence in its dealings with that seller.

A rights holder’s notice is also significant. If a rights holder submits a substantiated notice to the platform containing information confirming ownership of the exclusive right and setting out circumstances indicating the unlawful use of the relevant intellectual property, the marketplace may, in particular, be required to suspend the disputed offer for the period necessary to resolve the dispute in court or obtain interim relief.

If the platform ignores a substantiated notice or fails to comply with obligations imposed on it by a court, this may affect the determination of whether it qualifies for exemption from liability.

Other circumstances may also be relevant when assessing the platform’s role. For example, the clarifications accompanying the Constitutional Court’s resolution specifically address situations in which a marketplace itself participates in promoting counterfeit goods, sells such goods in its own name, or derives revenue from their sale.

It is important, however, to distinguish between a marketplace’s liability for intellectual property infringement and its new obligations to verify information in product listings. As of 1 October 2026, a specific verification procedure is being introduced for platform operators. In cases prescribed by law, the platform must verify product information before a listing is published, when certain information is subsequently amended, and thereafter at specified intervals.

3. The rightsholder does not react: the responsibility for protecting their right does not disappear.

The third scenario may seem paradoxical: what does the rightsholder themselves have to do with counterfeit goods?

The rightsholder is not responsible for a third party listing counterfeit goods. However, in many cases, the activation of the rights protection mechanism depends specifically on them.

The position of the Constitutional Court of the Russian Federation implies that the rightsholder must provide the marketplace with information that allows for establishing the ownership of the relevant exclusive right and justifying the illegality—or the existence of reasonable doubts regarding the legality—of the object's use by a specific seller.

A rightsholder’s demand stating "this is my trademark, delete the listing" may be insufficient. The more accurately the rightsholder can identify their right, the disputed object, and the specific violation, the clearer the grounds for taking action become for the platform.

At the same time, the rightsholder is not required to independently prove the violation to the marketplace to the extent of a full-scale trial. Their task is to provide sufficient information for an initial assessment of the situation and subsequent response.

There is another important point. If a rightsholder submits a claim but fails to file a lawsuit within a reasonable timeframe, or if the court finds the claims to be groundless, the marketplace and the seller may, in cases specified by the Constitutional Court of the Russian Federation, demand compensation from the claimant for losses related to the suspension or removal of the product listing. Therefore, the intellectual property protection mechanism entails responsibility not only for the platform's inaction but also for the validity of the applicant's own actions.

What will change for brands from 2026–2027

New rules are gradually shifting marketplaces from a "post a listing – react to a complaint" model to a more complex system of preliminary and subsequent checks.

Starting October 1, 2026, marketplaces will be required to conduct special listing checks prescribed by law for certain categories of goods. In particular, if a product requires mandatory labeling or confirmation of compliance, appropriate verification mechanisms are applied. Listings posted before October 1, 2026, must be checked within the established transition period – no later than March 29, 2027.

Another stage will begin on March 1, 2027. The platform operator will be required to verify information about the right holder or the person granted the right to use a trademark, in accordance with the data from the State Register of Trademarks.

Upon confirmation of the relevant information, the marketplace will allow the publication of the product listing containing the trademark.

But even such a system does not mean that the right holder can completely abandon market monitoring. Verifying information in state systems and monitoring the actual use of a brand are different tasks. The former allows for the verification of specific information about a product or the right to a trademark. The latter allows for identifying specific offers, sellers, and new violations directly on the platform.

Who is ultimately responsible for counterfeit goods?

There is no universal answer of "seller" or "marketplace." Depending on the circumstances, different situations may arise:

The Seller – when they are the one listing and selling goods that infringe on exclusive rights.

The Marketplace – when there are circumstances under which it cannot claim a lack of knowledge regarding the infringement, fails to take necessary measures after receiving a substantiated complaint, or otherwise exceeds the role of an information intermediary.

The Rightsholder – not as an infringer, but as a participant in the rights protection procedure: it is they who must identify violations in a timely manner, submit substantiated appeals to the platform, and, if necessary, use judicial protection mechanisms. In the event of an unsubstantiated appeal or inaction following an appeal, the rightsholder may face legal consequences.

For businesses today, the question is no longer just about who will be held liable for discovered counterfeit goods. It is equally important to understand who should detect the violation and at what stage, what information needs to be recorded, and what actions should follow its discovery. Such a model allows for the consideration of three elements of the new system at once: the seller's liability, the marketplace's obligations, and the active role of the rightsholder.