Marketplaces: new European anti-counterfeiting measures


On December 15, the European Commission unveiled the new draft “Digital Services Act” (hereafter DSA) regulation aimed at regulating the digital market. The text aims to create a strong framework for consumer protection, transparency and accountability of online platforms in order to foster innovation and competitiveness within the single market.

Which online platforms are targeted?

Online platforms are defined as “hosting service providers that not only store information provided by service recipients at their request, but also disseminate this information to the public, again at their request.» These platforms include social networks and marketplaces.

Mechanisms for combating illegal content: the example of marketplaces

In the draft report of the ITRE Committee published on 28 May 2021, the rapporteur Henna Virkkunen focuses on certain points of the DSA. Particular attention is paid to the moderation of illegal content on online platforms, such as counterfeit products on marketplaces.

1/ A notification system

The DSA mentions the importance for hosting service providers to put in place a system that facilitates the notification of content that a user considers illegal (“notification”). The provider can then decide whether to agree or disagree with the notification and whether to remove or disable access to that content (“action”).2

The Rapporteur thus proposes that “very large online platforms” will be required, when they become aware that consumers have purchased counterfeit products from third-party sellers, to notify those customers of their discovery. 3 The remainder of the amendment provides for the following the remainder of the amendment sets out the manner in which such notification will be made (electronically, with the name of the seller, etc.).

If the seller is found to have sold several counterfeit items, it should be possible for the platform to send a notification to all its customers. A code of conduct will have to be drafted by the Commission and the national coordinators to specify the content of the notifications.

2/ A trusted signatory status 

The DSA proposes that a trusted flaggers status be created specifically for the notification and action procedure. Notices submitted by these flaggers should be given priority by the platforms. 4

This status should only be granted to entities that:

-have demonstrated expertise and particular competence in the fight against illegal content

-represent collective interests

-work diligently and objectively.

For intellectual property rights, the rapporteur states that organizations of industry and rights holders specifically created for this purpose could be recognized as trusted reporters. They would have to meet the applicable requirements and demonstrate that their assessment of what constitutes an infringement of intellectual property rights is impartial and consistent. 5

Online platforms should, to the extent possible, provide trusted whistleblowers with access to technical means to help them detect illegal content on a large scale. 6

By the IP/IT team of UGGC Avocats

Source : Context

Draft report of the ITRE Commission:

1 Recital 13 of the DSA

2 Recital 40 of the DSA

3 Amendment n°15 of the draft report of the ITRE Commission.

4 Recital 46 of the DSA

5 Amendment No 13 to the draft report of the ITRE Committee

6 Amendment No 13 to the draft report of the ITRE Committee

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