Trademark owners are likely to face difficulties in connection with the offering of their products on unofficial vendors' websites.  The Supreme Court ruled that in certain circumstances, publication  of relevant information does not infringe the rights of a brand owner.

In case of pre-order sales, it would be sufficient for any vendor to provide a contract with an authorized dealer to avoid charges of selling counterfeit products.  A trademark owner, on the contrary, would have to provide a thorough evidence of the illegal origin of products in commercial operations, the lawyers note.

Now, the Supreme Court has adjusted the apportionment of the burden of proof in cases over the offering of products on a pre-order basis.  It eventually appears that the "principle of the exhaustion of trademark rights" has become applicable to "hypothetically" original products, because a claimant has not proved the non-originality of products, thus, creating a softer position for vendors, clarified VERBA LEGAL's Counsel Aleksey Darkov.

He added that in practice, bad-faith market participants often use well-known brands of competitors to draw attention of potential buyers.  "For instance, a buyer is told that a product that he or she is looking for is over, but there is a chance to buy the "same, but slightly different product," Aleksey explained.

Without purchasing a product and actual evidence of its fakeness, now, a trademark owner is running the risk losing a court dispute.

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