Liability of marketplaces and other information intermediaries for infringements of intellectual property rights in Kazakhstan

May 2026

Introduction

As of today, in Kazakhstan, as in many other countries, traditional trade is gradually migrating to the electronic environment. It is unlikely that e-commerce will completely replace conventional physical retail in the near future; however, already in 2024 the volume of the e-commerce market in Kazakhstan amounted to 3.15 trillion tenge, which is 4.1% higher than in 2020¹. Thus, according to current trends, traditional retail is losing about 1% of its customers per year, and this trend may accelerate sharply at any moment.

Public procurement and procurement in the quasi-public sector, which are also part of trade, have already been fully transferred to electronic formats. Moreover, an electronic store has already been launched, featuring an electronic catalog of goods and services².

Among the general population, e-commerce operates either through companies’ own online stores or via electronic trading platforms – marketplaces. Wholesale and retail trade through social networks such as Instagram, Facebook, VK, and others is also widespread, as well as through messaging applications like WhatsApp or Telegram.

The most popular marketplace is Kaspi Shop (hereinafter referred to as “KS”). In 2023, its share of revenue increased by 56.08%, and the average monthly number of fulfilled orders exceeded 3.5 million³.

At the same time, it is not surprising that alongside traditional trade, sellers of counterfeit and parallel-imported goods are also moving to marketplaces – that is, products that infringe intellectual property rights, most often trademark rights. In Kazakhstan’s information space, KS is already being referred to as a flea market⁴, and consumers complain about counterfeit goods⁵. This is not surprising, since it is much easier to deceive consumers in the digital environment: while in an in-person purchase a consumer can at least to some extent distinguish a counterfeit, in the online environment infringing sellers use photographs of original products taken from manufacturers’ websites. Of course, there are also those who upload photos of the counterfeit goods themselves, but such sellers are few, and consumers are increasingly forced to buy a “pig in a poke.” As a result, consumers file complaints with the Committee for Consumer Protection, the Ministry of Justice, and other government bodies, and the number of such complaints specifically against marketplaces is increasing exponentially from year to year⁶.

Rationale.

The activity of the marketplaces is regulated by various legislative acts. These include the Civil Code (General and Special Parts) with regard to the regulation of transactions, the Entrepreneurial Code with regard to antitrust regulation, the Criminal Code and the Code on Administrative Offences with regard to the dissemination of various types of prohibited information, as well as information that harms honor and dignity, and the Tax Code with regard to the payment of taxes. In addition, the activities of marketplaces are regulated by various specialized laws, primarily the Law of the Republic of Kazakhstan “On regulation of trading activities” which defines any type of marketplace as an “electronic trading platform” and regulates its main obligations to the state and consumers.

At the same time, the activities of marketplaces in terms of compliance with intellectual property rights are not fully regulated by the current legislation of the Republic of Kazakhstan, and the issue of holding marketplaces liable remains open, including due to the lack of judicial practice.

Nevertheless, the Ministry of Justice of the Republic of Kazakhstan has already raised concerns about holding marketplaces accountable for the sale of counterfeit goods, although so far only at the level of calls for good faith and responsible conduct⁷.

At the same time, the need for legal regulation of marketplace activities in terms of protection against counterfeit goods and parallel imports has become pressing, and the topic is being actively discussed. Marketplaces themselves are involved in proposing amendments to legislation, but only from the perspective of consumer protection. That is, if a consumer complains about a counterfeit product, under the draft law on amendments and additions to certain legislative acts regulating trading activities, the marketplace is obliged to take action. However, if a complaint about the sale of counterfeit goods is filed by the product manufacturer, the holder of intellectual property rights, or their representative, the Law “On regulation of trading activities” does not oblige the marketplace to respond.

This article attempts to structure the various types of information intermediaries and the forms of their participation in the dissemination of product information or in the sale of goods. It examines the approaches of different countries to regulating the activities of marketplaces and other information intermediaries, reviews foreign case law arising from the current legislation of foreign jurisdictions, analyzes the forms of liability of information intermediaries, and proposes possible amendments to the legislation of the Republic of Kazakhstan aimed at effectively combating counterfeit goods and parallel imports.

Despite the fact that various violations of intellectual property rights occur on the Internet, the subject of this article is limited to violations of trademark rights protected in the Republic of Kazakhstan. Violations of copyright, related rights, patent rights, as well as rights to other means of individualization, are not within the scope of this study.

Discussion.

Information intermediaries

It is necessary to begin the study of this issue by understanding the subject of the relationships under consideration, namely the marketplace. When asked “what is a marketplace?”, an average Kazakhstani consumer will most likely think of a mobile application or a website that contains numerous images of a wide variety of goods, along with descriptions and prices. The consumer will also likely understand that most of the goods are sold not by the owner of the application or website itself (i.e., not by the marketplace), but by third parties, while the marketplace provides a certain space – most likely a limited amount of memory on its own or leased servers – for placing the product images and related information.

Today, among marketplaces in Kazakhstan, in addition to companies that are engaged solely in managing their applications, such as Wildberries or Ozon, there are also bank-operated applications for selling goods, for example Kaspi Shop, HalykMarket.kz, or Jmart.kz. Marketplaces also include applications of retail companies that have physical stores and warehouses, such as Sulpak.kz or Technodom.kz. In addition, marketplaces may include applications such as Aviata.kz (now called Freedom Travel, a service for searching air and railway tickets) or Tickets.kz (a service for selling tickets to various events). This category also includes GlovoApp (a service for the delivery of ready-made food and beverages, as well as certain goods) and Arbuz.kz (a service for the delivery of groceries and other goods).

A separate category includes classified advertisement aggregators, such as Kolesa.kz (an aggregator of advertisements for the sale of cars and spare parts) and Olx.kz (an aggregator of advertisements for the sale of a wide range of goods). Finally, even applications such as abr+ (a service for selling restaurant services)⁸ or 1fit.app (a service for selling fitness club memberships) are classified as marketplaces. Recently, there has also been a growing trend toward the development of so-called super-marketplaces that combine several other marketplaces within a single ecosystem, such as the Aitu application.

In other words, the areas of activity of marketplaces can be extremely diverse, encompassing both various goods and various services. As a result, the digital environment largely mirrors the physical one. It should also be borne in mind that most such marketplaces and their participants have counterparts in the real world. A marketplace for the sale of goods in the physical world may be compared to a bazaar, a supermarket, or a shopping mall; a ticket search service to an airline ticket office or a travel agency; a standalone online store to a shop or other point of sale; a classified advertisements aggregator to a newspaper or magazine; targeted advertising on a specific website or application to television or radio advertising; banner advertising on websites to roadside billboards, and so forth.

As for the legal definition of a marketplace, in the Law “On regulation of trade activities” it is defined as “an Internet resource providing infrastructure to electronic trade participants, including their conclusion of contracts for the provision of works and services using information and communication technologies”. It is noteworthy that, pursuant to subparagraph 46) of Article 1 of the Law of the Republic of Kazakhstan “On informatization” an Internet resource is defined as information (in textual, graphic, audiovisual, or other form) posted on a hardware and software complex that has a unique network address and/or a domain name and operates on the Internet. It follows that, if the provisions of the Law “On regulation of trade activities” are considered together with those of the Law “On informatization,” a marketplace is, in essence, not even a trading facility but rather information that provides a certain infrastructure for participants in electronic commerce. We consider this definition to be ambiguous and capable of depriving a marketplace of legal personality.

It should be noted that behind every marketplace and every online store there are several additional participants in the relevant legal relationships, including a telecommunications operator, a provider of intermediary and temporary data storage services (a caching provider), a provider of permanent data storage services on a server (a hosting provider), a domain name registrar, a provider of cross-linking or keyword services, a payment system operator, a security system provider, a provider of large-scale data analytics systems, and others. All of these participants in legal relations who, in one way or another, facilitate the transmission of information are commonly referred to as information intermediaries or providers⁹. It should also be noted that information intermediaries include messengers, social networks, as well as email services, search engines¹⁰, and websites providing video content¹¹. Accordingly, legislative changes concerning marketplaces also affect other intermediaries, both in the digital environment and in the physical one, and this is important to bear in mind when developing any amendments or additions to legislation.

In the United States, marketplaces are classified as Internet service providers under the Digital Millennium Copyright Act of 1998¹², while in the European Union marketplaces, along with social networks and search engines, are classified as information intermediaries, specifically as online platforms, under the Digital Services Act of 2022¹³.

A similar, albeit terminologically confusing, approach is applied in Russia, where marketplaces may be classified as information intermediaries referred to in Article 1253.1 of the Civil Code of the Russian Federation. However, Russian judicial practice, which will be examined below, demonstrates that it is precisely this lack of clarity in terminology that leads courts to render decisions both against and in favor of marketplaces under similar circumstances.

In China, the approach to marketplaces is somewhat different, classifying them as “e-commerce platform operators” under the Law of the People’s Republic of China “On E-Commerce”¹⁴.This approach distinguishes marketplaces from all other participants in the relevant legal relationships and allows their activities to be regulated without conflating them with telecommunications operators, hosting providers, domain registrars, and other intermediary entities. This approach is likely justified, given that China is one of the largest providers of e-commerce in the world¹⁵. Nevertheless, it is generally considered that the United States offers the least stringent regulation, with minimal government intervention, allowing marketplaces to manage intellectual property issues themselves, except in certain cases. The European Union provides a moderate level of regulation, having placed the oversight of marketplaces at a supranational level. The strictest government regulation is found in China and Russia, where complete control over the information environment is established¹⁶.

In Kazakhstan, however, a marketplace is not classified as an information intermediary but is referred to as an “electronic trading platform”¹⁷. It should be noted that the concept of an information intermediary is generally absent in Kazakhstani national legislation.

In 2008, a draft Law “On the regulation of the Kazakhstani segment of the Internet”¹⁸, it was proposed to refer to such entities as “information intermediaries,” including “Internet service operators, as well as website owners who, through their information systems, provide users with access to other information systems on the Internet (offering interactive services), or provide services for maintaining a user’s information resource on their own infrastructure, or for temporary and permanent storage of information”. This is a fairly comprehensive definition, and marketplaces could clearly fall under it. However, the law was never adopted in its proposed form, and its provisions were not incorporated into other regulatory acts of the Republic of Kazakhstan to the extent necessary for regulating the activities of intermediaries. Instead of the Law “On the regulation of the Kazakhstani segment of the internet,” another one – the Law “On amendments and additions to certain legislative acts of the Republic of Kazakhstan on information and communication networks” was adopted, which did not include the concept of an information intermediary.

A little later, in November 2008, at the thirty-first plenary session of the Interparliamentary Assembly of the CIS Member States, the Model Law “On electronic commerce” was adopted¹⁹. In this Model Law, an information intermediary was defined as “a person [entity] who, on the initiative and on behalf of another person, sends, receives, or stores an electronic message, or provides other services in relation to such messages”. In turn, an ‘electronic message’ is defined as “information that is prepared, sent, received, and stored using information systems, information and communication networks, and electronic procedures”. Thus, the circle is complete, and, as can be seen, the Model Law does not disclose the substance of information intermediaries, and marketplaces can be brought within this concept only with considerable strain.

At the same time, the same Model Law defines the concept of a person [entity] engaged in electronic commerce. Such a subject is defined as “a person [entity] who sells goods, performs works for remuneration, and provides services using electronic messages”. However, since many marketplaces do not sell goods directly, it is quite difficult to subsume them under this definition. It is also noteworthy that, pursuant to Article 23 of the Model Law, information and other intermediaries providing services to support and carry out electronic procedures in the field of electronic commerce bear liability for the performance of their obligations as established by national legislation and by agreements between the parties. At the same time, the national legislation of the Republic of Kazakhstan lacks the concept of an information intermediary and, accordingly, does not provide for liability for its activities.

Much later, specifically in March 2016, Kazakhstan ratified the Agreement with the European Union “on Enhanced Partnership and Cooperation”²⁰. Section 4 of this Agreement provides for the liability of service providers acting as intermediaries. Articles 113, 114, and 115 divide such intermediaries into those providing “mere conduit” services (essentially telecommunications operators), “caching” services (providers of intermediary and temporary data storage), and “storage” services (hosting providers). It is not entirely clear to which of these categories marketplaces should be attributed. Moreover, neither the provisions of the CIS Model Law nor those of the Agreement with the European Union have been incorporated into national legislation with respect to defining and regulating the activities of information intermediaries, remaining instead at the level of international agreements of a declaratory nature.

Thus, marketplaces in Kazakhstan are not classified as information intermediaries, and, more broadly, despite the existence of international agreements, the legal status of such intermediaries remains insufficiently regulated, particularly with regard to the protection of intellectual property rights. Such a lack of regulation leads to unstable legal relations, “since the rights of the main participants in the legal relationship, although formally guaranteed by law, may in practice prove unenforceable due to the unregulated status of information intermediaries”²¹.

Accordingly, there is also no clear delineation of marketplace liability: in Kazakhstan, marketplaces do not bear direct, joint, or subsidiary (secondary) liability toward rights holders. Kazakhstani scholars merely allude to the possible existence of secondary liability when comparing the civil legislation of the Republic of Kazakhstan with German law, noting that an obligation may arise as a result of harm, under which compensation for damage must be provided not only by the person who caused the harm, but also by another person who is responsible for the actions of the tortfeasor²². However, as long as such arguments remain at the level of theory, marketplaces in Kazakhstan are free to refuse any rights holder’s request to remove infringing content, leaving rights holders to rely solely on the goodwill of marketplace operators rather than on statutory provisions.

By the way, in Russia, in 2023, a document entitled “Good Faith Practices for Interaction between Marketplaces, Rights Holders, and Sellers in the Framework of Combating the Sale of Counterfeit Goods” was adopted²³. Against the backdrop of the ambiguous legislative regulation of this issue in Russia, the 2023 Practices provide for cooperation between marketplaces and rights holders, envisaging various tools and procedures such as test purchases, product examinations, removal of goods from sale, the establishment of “red flags” for suspicious products, disclosure of seller information, and the maintenance of brand owner dashboards. These Practices have certain shortcomings, including the need for rights holders to purchase large quantities of goods, and they rely on voluntary participation by both rights holders and marketplaces, which entails a risk of refusal to join. Nevertheless, their very existence represents a step toward further regulation of the e-commerce sector.

With regard to Kazakhstan, in the limited number of events (roundtables, business breakfasts, conferences, seminars) held in recent years specifically on the protection of intellectual property on marketplaces, the main argument of marketplaces against adopting such voluntary Practices in Kazakhstan is that a marketplace’s participation could be interpreted as entering into an anti-competitive agreement under Article 169 of the Entrepreneurial Code of the Republic of Kazakhstan, seen as an agreement that results in a refusal to contract with certain sellers or buyers. It should be noted, however, that paragraph 7 of Article 169 does allow for the conclusion of anti-competitive agreements under restrictive conditions if such agreements concern the exercise of exclusive rights to intellectual property and related means of individualization (license agreements). In the same way, this paragraph could be supplemented with provisions permitting anti-competitive agreements not only on the exercise of exclusive rights but also on their protection. Nevertheless, such amendments have not yet been made in Kazakhstan.

In 2022, the Eurasian Economic Commission announced that it is developing an Agreement on the Protection of Intellectual Property Rights on the Internet²⁴. The draft Agreement, in particular, envisages the introduction of a mechanism for blocking illegal content through judicial and extrajudicial procedures, the involvement of information intermediaries in the process of preventing intellectual property rights infringements, as well as the establishment of liability in the national legislation of the Union countries for failing to restrict access to illegal content. However, at the time of writing this article, the Agreement had not been submitted for public discussion.

From all of the above, it follows that Kazakhstan requires clear regulation for the protection of intellectual property rights on marketplaces. It is only necessary to determine the underlying concept — whether to continue treating marketplaces as independent entities, separate from information intermediaries, as is done in China, or as part of the category of information intermediaries, as is the case in the United States, the European Union, Russia, and a number of other countries.

On the one hand, Chinese legislation regulates the activities of e-commerce operators in a fairly straightforward manner, and Articles 41–45 of the PRC Law on E-Commerce introduced unprecedentedly detailed rules governing the actions of an operator upon receiving a complaint from a rights holder²⁵. However, if Kazakhstan were to introduce regulation solely for marketplaces, all other information intermediaries in the country would remain without proper regulation. Interestingly, the issue of the lack of regulation of information intermediaries in Kazakhstan did not arise in the context of counterfeit goods on marketplaces, but rather against the backdrop of lawsuits in 2018 concerning Kazakhstani companies that retransmitted foreign television channels and engaged in broadcasting²⁶. It was precisely such companies that sought to be recognized as information intermediaries and to be exempted from liability for third-party content, as provided for under the EU Agreement on Enhanced Partnership and Cooperation, the Digital Services Act (DSA), the DMCA, and other foreign legal acts, as well as the “Manila Principles”²⁷.

It is also noteworthy that prior to the relatively active development of the retransmission and e-commerce markets, the issue of information intermediaries was hardly ever raised. In essence, any newspaper or magazine, any shopping center or market, any printing house, a taxi with a rooftop billboard, or even a post covered with advertisements already serves as a source of information about a product or service, through which such information is conveyed to consumers. These are information intermediaries existing in the real, rather than digital, world. Such “physical” intermediaries have existed for over a century, yet their liability for disseminating information about the sale of counterfeit goods has rarely been widely discussed, and there are very few professional literature sources on this topic. A 2014 article, “The Right to Liability,” discussed the responsibility of printing houses that produced stickers for counterfeit spare parts; at that time, their liability was considered not as secondary liability of an information intermediary, but as joint liability alongside the seller of the counterfeit goods distributing products with such stickers²⁸. This is almost a unique case of examining the liability of “physical” intermediaries through the lens of intellectual property protection. In most other cases, such “physical” information intermediaries have been considered under advertising legislation and classified as advertising distributors.

Marketplaces are also, by their nature, advertising distributors, but this does not change the situation — national legislation does not develop in favor of intellectual property protection when it comes to any type of information intermediaries, whether physical or electronic: neither advertising law, nor the law on information intermediaries, nor trade legislation. At the same time, there have been cases where any Internet resource was recognized as mass media, which is precisely how the latest version of the Law “On Mass Media” was structured²⁹, under which even the website of the National Bank of Kazakhstan or the Office of the Prosecutor General of Kazakhstan is considered mass media³⁰.

For these reasons, Kazakhstan is more in need of developing legislation on information intermediaries than otherwise, with a clear distinction between physical and digital intermediaries, a precise definition of which digital intermediaries are not liable for third-party content, as well as a clear description of the actions marketplaces must take upon receiving a copyright holder’s complaint and the liability for failing to perform these actions. Kazakhstan has a unique opportunity to apply the experience of the USA and the EU, avoiding the ambiguous approach of Russia, while also leveraging the positive experience of China. In other words, Kazakhstan should introduce regulation for information intermediaries, especially since the groundwork has already been laid by international agreements, and should not attempt to use overly broad definitions that could confuse the courts, but rather apply simple and clear instructions and liability measures to marketplaces (or electronic trading platforms) for failure to comply with such instructions.

What is the liability of a marketplace towards a copyright holder?

As is well known, legal liability, in general, is a type of social responsibility. Legal liability is based on legal norms, guaranteed by the state, enforced through state coercion, entails punishment as a consequence of its occurrence, and is exercised in procedural form³¹.

Civil liability, in turn, is divided into individual, shared, joint, and secondary (subsidiary) liability. Individual liability applies to a single entity and falls entirely on their shoulders. However, in these legal relationships, on one side there is the rights holder, and on the other – the seller and the marketplace.

In short, shared (proportional) liability takes the form of equal shares, each of which is compensated to the creditor by each of the debtors. In this case, the creditor has no right to claim compensation from a debtor who has already paid their share.

Under joint (solidary) liability, the creditor has the right to demand fulfillment of the obligation from all debtors collectively or from any one of them individually. This right applies to the entire debt or a portion of it. A creditor who has not received full satisfaction from one of the joint debtors has the right to claim the remaining amount from the other joint debtors³².

In a subsidiary obligation, a claim may be made against the subsidiary debtor only after it has been presented to the primary debtor and if the primary debtor fails to satisfy the claim in whole or in part. In the case of subsidiary liability, the subsidiary-liable party enters the obligation as an additional debtor, supplementing or replacing the primary debtor³³.

It is necessary to clearly understand what claims a rights holder can make both against a seller on a marketplace and directly against the marketplace itself. According to Article 9 of the Civil Code of the Republic of Kazakhstan (General Part), the rights holder, among other things, has the right to demand from the seller the cessation of actions that violate the right (for example, by removing the product listing), the recovery of damages (if they can be proven), and compensation for moral harm (if the rights holder is a natural person).

To the marketplace, claims can be made for the restoration of the situation existing before the violation of the right (also in the form of removal of a product card), recovery of damages (if the role of the marketplace consists of more than only the function of an aggregator), termination or modification of legal relations (in the form of termination of the contract with the seller and removal of all their product cards with subsequent blocking of the account).

According to the provisions of Article 1032 of the Civil Code of the Republic of Kazakhstan (Special Part), the rights holder has the right to demand from any person who has infringed the exclusive right to a trademark the cessation of the infringement, compensation for damages, recognition of the goods as counterfeit with subsequent destruction³⁴, and payment of compensation in lieu of damages.

It is evident that the majority of claims are intangible in nature – cessation of infringing actions, restoration of the previous state, termination of legal relations, and cessation of the violation. Among tangible claims, it is possible to demand the destruction of counterfeit goods (albeit with significant doubts regarding the feasibility of enforcement), as well as the payment of either damages or compensation.

What type of liability should be applied to enforce these claims? Joint liability cannot be applied in this case, as it is unclear how to divide the performance of intangible claims into portions. In this context, either solidary (joint and several) liability or subsidiary liability may be applied.

“According to paragraph 1 of Article 287 of the Civil Code of the Republic of Kazakhstan (General Part)” « Solidary obligation or solidary claim arise, if this is provided by the contract or established by legislative acts». In this situation, there is no contract between the right holder (the potential creditor) and the seller and the marketplace (the potential joint debtors in a multi-party obligation) that would create a joint obligation. As for the legislation, it currently does not provide for the liability of the marketplace (except in cases of direct influence on the price and terms of sale of the goods by the marketplace, which will be discussed later) to the right holder, neither as an information intermediary nor as an electronic trading platform.

What remains is only subsidiary liability under Article 288 of the Civil Code of the Republic of Kazakhstan (General Part), whereby the marketplace “completes” the seller’s obligation to the extent not fulfilled by the seller themselves. In other words, holding the marketplace civilly liable under subsidiary liability will only be possible at later stages of civil proceedings or even in separate proceedings. As for administrative liability, it is generally impossible, since “completion” of the sanction under a particular article of the Administrative Code of the Republic of Kazakhstan by another person is not provided for. Regarding criminal liability, in theory, the marketplace and the seller could be considered as a group of persons, even acting in collusion; however, Article 222 of the Criminal Code of the Republic of Kazakhstan, which provides for criminal liability for the unlawful use of someone else’s trademark, does not include any qualifying circumstances.

In American literature, subsidiary liability is considered as part of secondary liability for intellectual property infringement³⁵. In such disputes, the defendant (in this case, the marketplace) is brought into the dispute through a ‘secondary’ claim and is liable for the actions of third parties (sellers on the marketplace) in the uncovered part of the obligation³⁶. However, the doctrine of secondary liability is not applicable in our legal system – here the defendant is involved as an independent procedural party (defendant or third party), or in a group (as a co-defendant).

From the brief analysis presented, it is evident that subsidiary liability is not entirely convenient when applied to the marketplace’s obligations toward the rights holder. The application of joint liability would be more appropriate, but currently there are no conditions for its implementation – there is neither a contract between the rights holder, the marketplace, and the seller, nor legislative regulation. However, since the first part of the article discussed regulating legislation by introducing the concept of an information intermediary and allocating the marketplace as a separate category, such regulation could simultaneously provide for the marketplace’s liability in the form of joint liability, arising under certain conditions. Incidentally, researchers from foreign countries reach similar conclusions regarding the need to apply joint, rather than subsidiary, liability to marketplaces³⁷.

As for the forms of liability, according to E.B. Osipov, the measures of liability can be divided into three groups: confiscatory, punitive, and compensatory³⁸. However, while Osipov classifies these measures of liability solely in terms of civil-law protection in general, with respect to the infringement of intellectual property rights, in particular trademark rights, this classification could be extended to include administrative-law measures. Incidentally, it is noteworthy that in the normative acts of foreign countries and integration associations, the liability of information intermediaries is considered only through the lens of civil-law impact; that is, the liability of the marketplace arises only in the event of a direct appeal to the court in civil proceedings. However, regulation in Kazakhstan could quite reasonably go further, and since confiscatory and punitive measures of liability exist, within the framework of administrative offense cases, marketplaces could well bear punitive liability before the state. The criminal-law method of protection will not be considered, as bringing the director of a marketplace to criminal liability seems excessive, although with such a rapid growth of e-commerce, in the future, the possibility of introducing criminal liability for the director of a marketplace cannot be excluded.

Returning to the study of foreign regulatory acts, as well as the international agreements of the Republic of Kazakhstan, it should be noted that they do not always contain direct provisions regarding the possibility of holding an information intermediary liable; rather, they contain provisions that allow an intermediary not to be held liable if certain conditions are met.

For example, according to Articles 113–115 of the Agreement with the European Union on ‘Enhanced Partnership and Cooperation,’ it is provided that various intermediaries are not liable if certain conditions are met. Thus, mere conduit intermediaries (network operators) are not liable if they do not initiate the transmission of information, do not select the recipient, and do not select or modify the information³⁹. A caching intermediary is not liable if it does not modify the information, complies with conditions of access to it, observes rules regarding the updating of information, does not interfere with the lawful use of widely recognized technologies in the sector for obtaining data on the use of information, and acts expeditiously to remove stored information or disable access to it upon obtaining actual knowledge that the information at the originating point of transmission has been removed from the network, or access to it has been disabled, or a court or administrative authority has issued an order to remove it or disable access⁴⁰. Finally, a hosting intermediary (which, by its technical nature, includes a marketplace) is not liable if it does not have actual knowledge of illegal activity or information, and upon obtaining such knowledge acts promptly to remove the information or disable access to it⁴¹.

It should be noted that the conditions for exempting intermediaries from liability provided by the Agreement correspond to the conditions set out in the EU E-Commerce Directive⁴², as well as the DSA. Similar conditions for exemption from liability are also provided in § 512 of the DMCA.

According to Article 1253.1 of the Civil Code of the Russian Federation, such an intermediary as a telecommunications operator is not liable if it is not the initiator of the transmission and does not determine the recipient of the specified material, does not modify the specified material while providing communication services, except for modifications carried out to ensure the technological process of material transmission, and also did not know and could not have known that the use of the corresponding intellectual property rights or means of individualization by the person who initiated the transmission of material containing such intellectual property rights or means of individualization is unlawful.

Regarding an intermediary that provides the opportunity to place material in the information and telecommunications network, it is not liable if it did not know and could not have known that the use of the corresponding intellectual property rights or means of individualization contained in such material is unlawful, and also, upon receiving in written form a statement from the rightsholder about the violation of intellectual property rights with an indication of the website page and/or network address on the Internet where such material is posted, promptly took the necessary and sufficient measures to stop the violation of intellectual property rights.

Thus, the legislation of the EU, the USA, and the Russian Federation is built on a fairly similar scheme – a marketplace is not liable if it was unaware of the trademark violation and, after receiving a notice from the rightsholder, took measures to remove the infringing content. This legal construction implies that to hold a marketplace liable, these regulatory acts must be read in reverse order – a marketplace is liable if it fails to take measures to remove illegal content after the rightsholder has notified it.

Unfortunately, from this construction, it is not entirely clear what type and form of liability the marketplace bears – individual or joint liability (in this case, only joint or subsidiary liability is possible), punitive or compensatory. As will be shown in the next part of the article, such uncertainty leads to differences in court decisions under similar circumstances.

It can also be seen from the aforementioned regulatory acts of the EU, the USA, and the Russian Federation that most intermediaries – telecommunications operators, caching providers, domain registrars – are exempt from direct liability in certain cases and for actions they could not have known or should not have known about⁴³. Some researchers compare such intermediaries to carriers or postmen, who merely transmit information but do not know its content⁴⁴. However, regarding a marketplace, the conditions for exemption from liability are somewhat simpler and more straightforward. A marketplace is an intermediary that provides permanent storage of information about goods, essentially acting as a hosting provider, and it can only be exempt from liability if it fails to timely remove information about a product (or service) that violates trademark rights.

Finally, from the aforementioned structure, it is clearly seen that a marketplace can be held liable only if it has received the corresponding notice from the rights holder and has taken no action. In other words, the basis for liability is knowledge of the infringement and inaction. That is, marketplaces, as one type of information intermediary, bear liability on the basis of fault⁴⁵. At the same time, this approach is considered reasonable, since if a marketplace were required to exercise greater diligence, such as checking every product posted by sellers for trademark infringements, such a requirement would overload the information intermediary system⁴⁶.

Particular attention should be paid to the E-Commerce Law of the People’s Republic of China. As mentioned above, this Law distinguishes marketplaces, or more precisely, the ‘operator of an e-commerce platform’, and provides separate regulation for it – not as part of other information intermediaries, but as an independent subject of regulation. The provisions on liability are set out in Articles 41–45 of the Law, and unlike the “reverse” model (exemption from liability if…), they provide a model of direct application of the legal norm.

Thus, the E-Commerce Law of the People’s Republic of China provides that “The intellectual property rights holder has the right to notify the operator of the e-commerce platform of the need to take appropriate measures, such as removal, blocking, disabling a link, or stopping a transaction or the provision of a service, if the rights holder believes that there is a violation of their intellectual property rights”⁴⁷.

It is further stated that “The operator of the e-commerce platform is obliged to promptly take the necessary measures and forward the said notice to the sellers listed on the platform upon its receipt. Failure to promptly take the necessary measures entails joint and several as well as individual liability of the operator of the e-commerce platform for any increase in damages together with the sellers listed on the platform”⁴⁸.

Thus, in order to avoid speculation and double interpretation, the Chinese Law “On E-Commerce” provides in a fairly straightforward manner for joint and several or individual liability of the marketplace towards the rights holder.

Before moving on to the conclusion of this part of the article, it is necessary to consider one more aspect of the marketplace’s liability, namely the form of the marketplace’s participation in the considered legal relations. A.S. Vorozhevich distinguishes two forms of marketplace participation:

1. The marketplace receives remuneration from the sale of goods;

2. The marketplace receives remuneration for providing services related to the sale of goods – providing functionality for promoting the goods on the marketplace (the “Send to Top” or “VIP Listing” function), organizing storage of goods, organizing delivery of goods, preparing accompanying documentation, and so on.⁴⁹

In the first case, the marketplace receives profit from sales, so it can no longer be called merely an intermediary. Moreover, to accelerate the sale of goods, the marketplace may change the description, price, or methods of advertising (for example, in the form of banner advertising on other websites or on social networks). That is, in the first case, the marketplace bears joint liability with the main seller without any conditions for exemption from liability. In the second case, when the marketplace earns only from providing additional services and does not participate in the sale, it remains an intermediary and bears joint liability only in the absence of conditions for exemption from liability⁵⁰.

In Kazakhstan, KM can be considered as a marketplace that receives commissions from the sale of goods since, in addition to providing intermediary services, it charges commissions ranging from 7% to 15%⁵¹. Moreover, this marketplace has the right to unilaterally edit product information at its discretion⁵² and independently organize advertising campaigns, including placing any promotional materials about the goods on third-party Internet resources, including social networks⁵³.

A typical representative of the second group of marketplaces, which receives remuneration for provided services, is the marketplace Krisha.kz, which charges only for the provision of paid services⁵⁴.

In concluding this part of the article, it is necessary to answer a number of questions:

1. which type of liability should be applied to a marketplace in Kazakhstan – joint (solidary) or subsidiary?

2. which procedural form of liability should be applied to a marketplace – civil law or also administrative law?

3. what sanctions should be applied in civil proceedings against a marketplace?

4. which legal construction should be chosen to hold a marketplace liable – a direct one, as in China, or a reverse one, as in the EU, USA, and Russia?

5. should it be indicated in the legislation that the applied sanction depends on the form of the marketplace’s participation in the sale of goods?

The answer to the first question is joint (solidary) liability, but it needs to be specified in the legislation. As was briefly discussed in the first part, subsidiary liability is inconvenient in relationships between marketplaces and sellers.

To answer the third question, it is necessary to refer to the Civil Code, in which Articles 9, 970, and 1032 already provide for civil liability for violations of trademark rights, and the sanctions of these articles can already be applied taking into account only joint (solidary) liability.

The answers to the second and fourth questions can be found in the draft Law of the Republic of Kazakhstan “On Regulation of the Kazakh Segment of the Internet.” In particular, paragraphs 2–4 of Article 13 state the following:

«2. The owners of websites, as well as operators of Internet services performing the function of an information intermediary through their information systems, shall not bear responsibility for the content of information and materials distributed by users, provided that they:

- do not initiate their transmission;

- do not select their recipient;

- do not filter or modify them.

3. If an information intermediary provides a service for the permanent storage of user-posted information and materials that do not comply, not comply with the requirements of the law and violate the rights of third parties, it shall be liable for their distribution if it fails to take the necessary measures to remove them or block access to them within one business day after receiving an official notice

A service provider acting as an intermediary cannot be required to search for facts or circumstances indicating the illegal nature of information provided by a user, except in cases explicitly stipulated by the legislation of the Republic of Kazakhstan..

The intermediary must remove or block access to user-posted information and materials that do not comply with legal requirements upon receiving an official notice in cases where:

- the notice is received from authorized state bodies;

- the information or material has already been removed or access to it has been blocked on the site where it was originally posted, or a court decision has been issued to remove or block access to it on that site;

- the notice contains the original or electronic signature of the person authorized to act on behalf of the rights holder, information about the alleged infringement; a description of the intellectual property objects that are allegedly infringed, indicating the source from which they were taken; information necessary for the information intermediary to locate the material that infringes the rights; necessary contact information of the person reporting the infringement, including: address, phone number, and, if possible, email address; a statement of how exactly the posted information and materials infringe the rights.

The information intermediary must notify the user within one business day about the removal or restriction of access to the information and materials posted by them, as well as the grounds for this, except in cases where the agreement with the user (contract, website rules, etc.) grants the intermediary the right to remove information and materials without explanation.

In other cases, disputes regarding the posting of materials and information are resolved by the court, while the information intermediary must ensure the storage of the disputed information and materials until the court decision comes into legal force, or, by agreement with other interested parties, for a longer period.

4. The provisions on limitation of liability apply to information intermediaries only in cases where they have designated, or specified in the site rules, an authorized representative for receiving notices of violations, indicating their name, address, phone number, and email address.”

According to the highlighted paragraphs, Kazakhstani legislation has already envisaged the use of a hybrid framework for holding marketplaces liable – both reverse and direct approaches. The reverse approach could be extended to the conditions of the EU “Enhanced Partnership and Cooperation Agreement” so as not to violate its requirements. The direct approach could be slightly clarified by specifying that liability is joint and several, as in China, or individual, depending on the marketplace’s form of participation in the infringement of intellectual property rights.

Furthermore, considering that paragraph 3 proposed blocking content upon notification by an authorized body, it can be said that this proposal lays the groundwork for the future application of an administrative-legal form of liability from a procedural perspective.

In essence, the draft Law of the Republic of Kazakhstan “On Regulating the Kazakhstani Segment of the Internet” already serves as a kind of preliminary framework for regulating the activities of marketplaces, and its implementation could benefit the current doctrinal regulation of marketplace activities in cases of intellectual property rights violations.

Finally, answering the fifth question, it could be specified that a marketplace, regardless of official notification, bears joint and several liability with the seller if it receives profit from the sale of goods or influences the sale by making changes to the product description or running promotions related to the product.

Judicial Practice of Holding Marketplaces Liable (Brief Case Study)

When considering the legal regulation of holding marketplaces liable in various countries, it is impossible to ignore the judicial practice that has developed around this legislation, which demonstrates how effectively the law is structured and how it is interpreted by the courts

In the United States, in the case of Tiffany & Co. v. eBay, the plaintiff argued that the marketplace should bear individual liability for trademark infringement, since when a third party lists an item, the marketplace can and must monitor the seller⁵⁵. The court disagreed with this claim and ruled to dismiss the case, reasoning that the burden of monitoring infringements rests with the rights holder.

Moreover, the court noted that the marketplace had taken measures to combat counterfeiting and implemented mechanisms to block listings, and it did not refuse to block them. This was a basis for considering that the marketplace, as an intermediary (provider) performing the function of storing information (hosting provider), had taken steps to block illegal content. However, the plaintiff demanded that the marketplace be held liable not as a co-defendant together with the sellers, but as the primary infringer of rights, which the court rejected. Ultimately, the marketplace was exonerated from liability, despite being aware that the sellers were offering counterfeit goods.

In the EU, in the case of L’Oréal versus the same marketplace eBay, the court also sided with the marketplace⁵⁶ The plaintiff demanded that, in addition to the eBay group of companies (3 defendants), seven more defendants – sellers on the marketplace – be held liable. The European Court found the sellers guilty of trademark infringement. Four of them were found guilty of distributing parallel imports (goods not placed on the market within the EU), and three were found guilty of distributing counterfeit goods. The marketplace itself was exonerated from liability; however, the court emphasized its obligation to remove suspicious listings upon the right holder’s request. The European Court also noted that, at the level of national courts, the intermediary activity of the marketplace could be subject to secondary liability (the marketplace pays compensation not paid by other defendants and removes listings not removed by other defendants), leaving this determination to the national courts. Additionally, the European Court stressed that if the marketplace knew or was notified of infringements and failed to remove the listings, it cannot be exonerated from liability in subsequent proceedings before national courts.

“In France, in the dispute between Louis Vuitton and the marketplace eBay, the national court took the position of the right holder – eBay was recognized as a direct infringer of trademark rights⁵⁷. The court justified this by stating that the marketplace had been notified of the infringements but failed to take proper measures, and its software for blocking listings subject to complaints was deemed ineffective. As a result, the marketplace was recognized as an active intermediary deriving profit from sales, and the court ordered it to pay damages, a fine, compensation for moral harm (which is allowed in France), and the plaintiff’s legal costs.

Also in France, in the dispute in the lawsuit filed by Hermes against a seller and two companies managing the eBay marketplace, the national court held the marketplace jointly liable with the seller, because it was aware of the situation and failed to take proper measures to remove the listing and stop the sale of counterfeit goods⁵⁸.

From the practice of courts in the USA, the EU, and France, it is evident that courts either recognize marketplaces as individually liable or jointly liable for the use of trademarks. At the same time, even in cases where the marketplace is not held liable, it is still obliged to remove listings or take additional measures to block listings. However, the experience of the USA shows that a marketplace can be fully exempt from liability if it implements software (a tool) to remove or block listings, even if such software later proves to be ineffective, as subsequently established in a court in France. The US example demonstrates an overly broad interpretation of the phrase ‘take measures to stop infringement of rights’.

In the Russian Federation, judicial practice is more contradictory ⁵⁹ In the case regarding the trademark ‘Lafinelle’, the court ruled that the seller LLC ‘Velar’ and the marketplace LLC ‘Wildberries’ are jointly liable for putting goods with the similar designation ‘Lafinele’ into circulation, and obliged them to cease the infringement and jointly pay compensation to the rightsholder⁶⁰.The marketplace was held liable because it was the direct recipient of the money, just like the Kazakhstani KM.

At the same time, in another case, where the actions of LLC ‘Wildberries’ under similar circumstances were initially recognized as an infringement of the trademark ‘6th Sense’, on appeal it was completely released from liability and payment of compensation due to being recognized as an information intermediary, exempt from liability⁶¹.

Also, in the case concerning LLC “Internet Resheniya” (the marketplace Ozon.ru), the court exempted the marketplace from liability, and the seller was not recognized as a co-defendant, since “the site ozon.ru is an information-reference system in which reference information about goods, services, offers of specific sellers (stores), and user information about goods/stores (reviews) is posted. At the same time, the Defendant itself does not carry out actions aimed at interacting with the intellectual property objects/trademarks of the plaintiff, nor does it use them.

The Defendant provides sellers with the technical ability to post information about products on the platform, but does not itself participate in the sale of the products”⁶². This decision is itself controversial, as the court smoothly shifted from the trademark to copyright, treating the case as if the object of violation were a copyright work, and also considered the marketplace as an information intermediary providing the ability to post material or information, as well as providing access to the material on the network—that is, like a telecommunications operator or a domain name registrar.

Thus, Russian judicial practice is quite contradictory. This is due to the fact that the definition of information intermediaries in Article 1253.1 of the Civil Code of the Russian Federation is too vague, allowing courts to interpret the concept ambiguously, which leads to questionable decisions.

Kazakhstani judicial practice, where a marketplace would be held liable not as a third party but as a defendant, is quite limited. At the time of preparing this article, only two such decisions have been identified.

The first case concerns the claim of A.N. Turdaliev against LLP “Kaspi Store” (KS) regarding the obligation of the defendant to remove all listings of products bearing the trademark “MANTING”⁶³. The court dismissed this claim, reasoning that KS “provides a platform for the sale and purchase of goods, but does not independently sell any products”.

In another case filed by the company “Astrata AG”, where the defendants are KS and individual entrepreneur “Zhumakhan A.D.”, a claim was made to oblige KS to remove listings with the “POLARIS” trademark, prohibit the use of this trademark, and pay compensation in the amount of 3,690,000 tenge⁶⁴. Similar claims were made against the second defendant. In this case, the court established that the seller ‘joined’ a previously created product listing for an iron and removed themselves from the listing after receiving the complaint. The court was unable to determine, and KM did not assist in determining, the identity of the person who originally created the product listing. As in the previous case involving KM as a defendant for trademark infringement, KM referred to the Agreement concluded with sellers (Partners), according to which the seller bears responsibility for violating the rights of third parties.

In this case, the court initially stated that the defendant, as an individual entrepreneur, had purchased the disputed product from a person who was lawfully authorized to use the trademark. However, in subsequent paragraphs, the court contradicted this by noting that the Plaintiff does not manufacture irons of such a design. Accordingly, an iron with a design that the Plaintiff does not produce could not have been acquired from an authorized person, and if it was acquired from such a person, it is counterfeit, as it was not manufactured by the Plaintiff or with their consent.

As a result, the claim was partially satisfied – compensation was recovered from the individual entrepreneur. At the same time, the actions of the individual entrepreneur were not recognized as infringing the trademark rights, as had been asserted in the claim.

In this case, the marketplace was exempted from liability for the following reason: «Thus, LLP merely provides a platform for the sale and purchase of goods, but in no way carries out the independent sale of any goods».

Unfortunately, Kazakhstan’s judicial practice in this category of cases cannot be said to be extensive at the moment. Nevertheless, from the two cases reviewed, it is clear that the courts hardly perceive marketplaces as proper defendants. In the absence of legislative regulation, the courts are forced to rely on the marketplace’s agreement with the sellers – that is, on an internal document of one of the defendants.

Conclusion

In conclusion of this study, it is necessary to summarize all the findings derived from the examination of foreign and national experience, as well as judicial practice, and to make recommendations.

First, a marketplace is a type of information intermediary. While other information intermediaries are generally exempt from liability, a marketplace may bear joint liability for trademark infringement if it fails to take measures to remove listings for goods that violate trademark rights – whether counterfeit or parallel-imported.

Second, if a marketplace directly receives payment for the sale of goods, retains a commission, and transfers the remaining amount to the seller, the marketplace bears independent liability.

Third, the more straightforward the legislation concerning marketplaces, the less ambiguous it is, and the fewer interpretive gaps exist in its legal constructs, the easier it is for courts to determine the degree of fault and to impose sanctions and compensation on marketplaces. This, in turn, provides an incentive for marketplaces, either individually or collectively, to develop instructions, principles, practices, and tools (software or specialized departments) for combating intellectual property rights violations, and to continuously improve them over time. For example, major international marketplaces have already implemented and regularly refine their policies and tools for intellectual property protection. In China, Alibaba Group and Taobao use the IP Protection Platform; Amazon has implemented Project Zero with zero tolerance for counterfeit goods, as well as the Brand Registry Tool; eBay employs the VeRO programme, which allows rights holders to submit infringement notices; and Meta (the social networks Facebook and Instagram) offers users the IP Help Centre, where complaints can be submitted⁶⁵. Since the implementation of all these policies and tools, the number of claims against marketplaces has decreased – provided, of course, that such policies and tools are not “illusory,” created merely to evade liability but essentially ineffective.

Fourth, Kazakhstani national legislation currently lacks regulation of information intermediaries and does not provide for liability for their actions with respect to rights holders. This issue requires prompt but thorough consideration. As a basis, one could refer to the draft Law “On the Regulation of the Kazakhstani Segment of the Internet,” issued back in 2008 – it contains a hybrid framework that allows for the application of provisions regarding the exemption of information intermediaries from liability, while simultaneously distinguishing regulations applicable to marketplaces or online stores, which were presumably more widespread in Kazakhstan in 2008.

It is also necessary to take into account the existence of other “physical” intermediaries – newspapers, markets, department stores, and so on. Alongside digital information intermediaries, regulatory frameworks could also be introduced for these intermediaries, which remain extremely popular in Kazakhstan.

Fifth, it is necessary to amend paragraph 7 of Article 169 of the Tax Code of the Republic of Kazakhstan to allow for the conclusion of anti-competitive agreements not only regarding the exercise of exclusive rights but also concerning their protection. This is necessary so that marketplaces can implement policies that limit the circle of sellers or restrict access to the goods market without risk to themselves and without fear of being accused of concerted anti-competitive actions.

Sixth, legislation must explicitly establish joint liability for a marketplace if it acts as an information intermediary–host, otherwise it will not be possible to hold it liable under current regulation as provided in civil law. If, however, the marketplace derives profit directly from sales in the form of a commission or otherwise, the provisions governing information intermediaries do not apply, and the marketplace bears joint liability with the seller of the goods, regardless of notification from the rights holder (and irrespective of fault).

Finally, there needs to be a discussion regarding the provision of seller information upon request from the rights holder or their representative. At present, most marketplaces provide only the seller’s contact number, which is insufficient even to file a claim directly against the seller, bypassing the marketplace.

Regulation of marketplaces in the area of intellectual property rights compliance is necessary because, without it, the situation may deteriorate not only for rights holders but also for consumers. It is understandable that marketplaces are already subject to regulation on a wide range of issues – taxes, antitrust compliance, adherence to ethical and moral standards, and more. However, practice shows that regulating intellectual property matters is a feasible task and does not require massive time or financial investments.