
Brand Protection and Enforcement Under the DSA: Opportunities and Challenges
In Short
The Situation: The Digital Services Act ("DSA"), which entered into force for all intermediary services and online platforms in February 2024, aims to modernize and harmonize the regulation of third-party content across the EU. It notably responds to the growing challenges of illegal content, including counterfeit goods, in the digital environment.
The Development: The DSA introduces a series of new procedural rights for trademark rights holders and parallel obligations for online intermediaries. Key features include standardized notice-and-action mechanisms, enhanced transparency and reporting requirements, trader traceability rules for marketplaces, and systemic risk management duties for very large online platforms.
The Outlook: The DSA is expected to strengthen the ability of trademark owners to enforce their rights online, reduce the prevalence of counterfeits, and increase accountability for platforms. Early enforcement actions and platform adaptations indicate a shift toward more user-friendly reporting tools, greater transparency, and proactive risk mitigation.
Understanding the DSA
The Regulation (EU) 2022/2065 of 19 October 2022, commonly known as the Digital Services Act ("DSA"), replaces the 20-year-old e-Commerce Directive as the principal EU framework governing third-party content on online intermediaries. While maintaining traditional "safe-harbor" protections that shield platforms from automatic liability for user-generated content, the DSA combines these protections with enhanced obligations that vary according to the size and impact of the platform or intermediary service provider. Designated "very large online platforms" ("VLOPs") and "very large online search engines" ("VLOSEs") have been subject to the DSA rules since August 2023; all other platforms became subject to the DSA rules on 17 February 2024.
In the event of a breach of DSA obligations by an online platform or intermediary, the European Commission may impose fines of up to 6% of the operator's worldwide annual turnover and periodic penalties of up to 5% of average daily worldwide turnover for each day of non-compliance.
Impact for Brand Owners
For brand owners, one of the DSA's notable innovations is its streamlined notice-and-action procedure. Under this mechanism, online intermediaries accessible in the EU must maintain efficient electronic portals where rights holders from any jurisdiction may file takedown notices. By providing a specific description of the allegedly infringing content, the legal grounds for the claim, and a good-faith attestation, brand owners trigger an obligation for the intermediary to respond "expeditiously." Responses must acknowledge the request, either remove or retain the content, and explain the decision in a "statement of reasons."
In addition, the DSA requires online marketplaces to verify certain trader information—commonly referred to as Know Your Business Customer—and to alert consumers or remove listings suspected of being counterfeit. The legislation also encourages the suspension of repeat infringers and grants preferential treatment to "trusted flaggers" that demonstrate expertise in identifying illegal content.
Early Examples of Implementation
Approximately 18 months after the DSA became directly applicable to all platforms and intermediaries, the European Commission has observed that many large platforms have implemented user-friendly channels for flagging trademark-infringing content and other illicit materials.
In parallel, multiple VLOPs have been the subject of official inquiries or have received requests in relation to their control of illicit content, while others have committed to remedy recurrent or systemic trademark infringements. Major e-commerce and social media providers have also been warned that non-compliance with stricter content-moderation requirements could expose them to significant fines.
Finally, in compliance with Article 24(5) of the DSA, online platforms now record every content-moderation decision in a central repository administered by the European Commission, known as the "DSA Transparency Database." This database gives trademark owners unprecedented visibility into platforms' response times, decision-making processes, and the rate of successful appeals. Rights-holders can use these data points to uncover enforcement gaps, benchmark performance across services, and present factual evidence during negotiations or litigation.
Two Key Takeaways
- The DSA equips brand owners with a coherent, enforceable toolkit—uniform takedown forms, KYBC obligations, and reinforced transparency—to combat online infringement.
- Trademark holders should integrate DSA-compliant notice systems into their existing brand-protection programs, monitor the Transparency Database for insights and evidence, and be prepared to seek national takedown orders or Commission intervention if platforms fail to fulfill their obligations under the DSA.