The DSA as a brand-protection tool: notice and action, trusted flaggers, trader checks

The legal framework

The Digital Services Act is Regulation (EU) 2022/2065. It entered into force on 16 November 2022 and has applied in full since 17 February 2024. It is not an intellectual property law. It does not say when a listing infringes your trademark; that question still belongs to trademark, design and copyright law. What the DSA gives you is procedure: a right to be heard by the platform, a decision with reasons, and a way to challenge that decision.

For a brand owner, that procedure matters more than it sounds. "Illegal content" is defined broadly in Article 3(h): any information that does not comply with Union law or the law of a Member State, including information about the sale of products. A listing for counterfeit trainers or a fake shop page using your logo qualifies.

Who is caught

The duties in this article fall on hosting services: services that store information provided by their users. Every online marketplace, social network, app store and website host is one. Within that group, online platforms (hosting services that also disseminate the information to the public) carry more duties, and online platforms allowing consumers to conclude distance contracts with traders (marketplaces, in short) carry the most. The DSA applies to services offered to users in the EU, wherever the provider is established (Article 2(1)).

Two exclusions matter. Platforms that qualify as micro or small enterprises are exempt from most of the platform section, including trusted flaggers and the misuse rules (Article 19), and small marketplaces are exempt from the trader rules (Article 29). Notice and action under Article 16 applies to every hosting service, whatever its size. How these layers fit together is set out in our article on platform and marketplace duties by size.

Hosting liability: the starting point (Article 6)

Under Article 6, a host is not liable for what its users store, as long as it has no actual knowledge of the illegal content and, once it learns of it, acts expeditiously to remove it or disable access. Two points help brand owners. A marketplace loses this protection under consumer law when it presents an item so that an average consumer would think the platform itself, or someone under its control, is selling it (Article 6(3)). And a court or authority can still order a host to end or prevent an infringement (Article 6(4)). The flip side is Article 8: no general duty to monitor can be imposed on intermediaries. The platform reacts; finding the infringement is your job.

Notice and action (Article 16)

Article 16 requires every hosting service to offer an easy, electronic way to report illegal content. The mechanism must make it possible to submit a notice with four elements:

1. a sufficiently substantiated explanation of why the content is illegal;
2. the exact electronic location, such as the URL or URLs, plus any extra information needed to identify the content;
3. the name and email address of the notifier;
4. a statement that the notifier believes in good faith that the notice is accurate and complete.

The key rule is Article 16(3). A notice gives the host actual knowledge, and so triggers Article 6, when it allows a diligent host to see the illegality "without a detailed legal examination". A notice that shows a registered mark, identical goods and an obvious counterfeit meets that test. A notice that asks the platform to weigh a parallel import or a comparative advertising defence probably does not. The host must confirm receipt, decide in a timely, diligent and objective way, and tell you its decision with information on redress (Article 16(4) to (6)).

Statement of reasons (Article 17)

When a host removes or demotes a listing, suspends payments or closes an account, it must give the seller a clear statement of reasons under Article 17. That statement says whether the decision followed a notice and, "where strictly necessary", identifies the notifier. Assume the seller may learn who you are.

Complaints and out-of-court settlement (Articles 20 and 21)

If a platform refuses to act, you are not stuck. Article 20 gives notifiers access to a free internal complaint system for at least six months after the decision, and decisions on complaints may not be taken solely by automated means. After that you can go to a certified out-of-court body under Article 21, which decides within 90 days (up to 180 for complex cases). Its decision is not binding, but if you win, the platform pays the body's fees and reimburses your reasonable expenses. Court action remains open at any stage.

Trusted flaggers (Article 22)

Article 22 requires online platforms to give priority to notices from trusted flaggers acting within their designated area of expertise, and to decide on them without undue delay. The status is awarded by the Digital Services Coordinator of the Member State where the applicant is established. The applicant must show particular expertise in detecting and notifying illegal content, independence from any platform, and diligent, accurate and objective notices. Trusted flaggers must publish an annual report on their notices, and the Commission keeps a public database of them. A platform that sees a significant number of imprecise or unsubstantiated notices from a trusted flagger can report this, and the status can be suspended and revoked.

Measures against misuse (Article 23)

Article 23(2) cuts both ways. Platforms must suspend, for a reasonable period and after a warning, the processing of notices from anyone who frequently submits manifestly unfounded ones. Under Article 23(1) they must also suspend users who frequently post manifestly illegal content, which is your hook against repeat infringers.

Marketplaces: trader checks and information (Articles 30 to 32)

Before a trader may sell to EU consumers, a marketplace must collect its name, address, phone number and email address, an identification document, payment account details, its trade register number where it has one, and a self-certification that it will only offer compliant products (Article 30(1)). The marketplace must make best efforts to check that data against official databases or supporting documents, and suspend traders whose data stays inaccurate after a request to correct it (Article 30(2) and (3)). Traders already active on 17 February 2024 had to be brought in line within 12 months. The name, contact details, register number and self-certification must appear on the listing page (Article 30(7)). Other data goes to third parties only where the law requires, for example under an order (Article 30(6)).

Article 31 requires a marketplace interface that lets traders show the product identification and "any sign identifying the trader such as the trademark, symbol or logo", plus product safety labelling, and requires random checks against official databases for products identified as illegal. Under Article 32, once a marketplace becomes aware that an illegal product was sold, it must tell buyers from the previous six months that the product is illegal, who the trader is and what redress they have.

In practice

Example: counterfeit listings on a marketplace

A Belgian sportswear brand finds forty listings for fake versions of its flagship shoe. Its notice for each listing gives the URL, the EU trademark registration, photos showing the differences from the genuine product, the price gap and a good-faith statement. Because the counterfeit is evident without a legal analysis, the marketplace has actual knowledge from the moment it receives the notice. The brand then reads the trader details shown on the listing (Article 30(7)) and checks whether the same company sells under other shop names. If the trader details are obviously false, the brand reports that too: the marketplace must ask the trader to correct them and suspend it if it does not.

Example: a refusal

A Dutch cosmetics company reports a seller of grey-market products relabelled for a different market. The platform refuses, saying the goods are genuine. Here the illegality may need a closer legal look (exhaustion of rights and repackaging rules), so Article 16(3) may not have been met. The company files a complaint under Article 20 with a short legal analysis and evidence of the relabelling. If that fails, it can choose a certified body under Article 21 or go to court.

A notice checklist

• Use the platform's own electronic mechanism; it must exist under Article 16(1).
• One notice per listing, each with its exact URL.
• Name the registered right (number, territory, goods or services) and attach evidence that makes the infringement visible at a glance.
• Leave borderline cases (authorised resellers, genuine goods, criticism) out of the bulk queue and give them individual treatment.
• Keep a record of every notice, acknowledgement and decision, with dates. You will need it for a complaint, for Article 21, or to show a pattern of repeat infringement under Article 23(1).

Should you become a trusted flagger?

The status is open to any entity, but a single brand owner will have trouble showing independence and broad expertise, and it takes on annual public reporting. More often, brand owners work through a trade association or an enforcement body that holds the status in its area of expertise. Whoever sends the notices, quality is what keeps priority: a flood of weak notices risks suspension under Article 22(6) or Article 23(2).

Contracts with distributors and sellers

Your distribution and licence agreements can require partners to keep accurate trader data on marketplaces and to use your marks only as agreed. That makes it easier to tell authorised sellers from infringers before a notice goes out.

Frequently asked questions

Does a platform have to remove every listing I report?

No. It must process your notice in a timely, diligent and objective way and give you a decision with reasons and redress options. If the illegality is clear without a detailed legal examination, the platform risks losing its liability exemption if it keeps the listing up.

Will the seller find out that I filed the notice?

Possibly. The statement of reasons to the seller may name the notifier where strictly necessary (Article 17(3)(b)). Plan your notices, and your tone, with that in mind.

Can I get the seller's identity from the marketplace?

Part of it is public on the listing under Article 30(7). The rest, such as identification documents and payment details, is disclosed only where the law requires, for example under a court order. The DSA does not create a separate right of access for brand owners.

Does the DSA replace platform brand programmes?

No. It sets a legal floor under them: every hosting service must accept notices, and online platforms must also offer complaints and out-of-court settlement.

What about domain names?

A hosting provider that hosts an infringing site is covered by Article 16. The domain name itself is usually handled through registrar procedures, the UDRP or a country-code procedure, as explained in our article on the UDRP and domain name disputes.

How this connects

The DSA turns takedowns into a documented procedure, and the quality of the notice decides the outcome. Our brand monitoring and online enforcement service finds infringements through online brand monitoring and turns them into notices with an evidence pack through our takedown and enforcement notice workflow, checked and sent by an attorney. For authorised sellers who drift from your brand rules, see brand policy compliance, and for domain names, domain name disputes. The legal basis of monitoring itself is in how brand monitoring works.

At a glance

• Provisions cited: Regulation (EU) 2022/2065, Articles 2, 3(h), 6, 8, 16, 17, 19, 20, 21, 22, 23, 29, 30, 31, 32 and 93.
• Key dates: in force 16-11-2022; applies 17-02-2024; traders already active on 17-02-2024 had 12 months to provide their data.
• In this series: platform and marketplace duties by size; the DMA for business users.
• Related reading: how brand monitoring works; the UDRP and domain name disputes.