The EU Digital Markets Act vs. the Digital Services Act: What Actually Applies to Brand Protection

The Digital Services Act is the EU law that actually governs brand protection and counterfeit enforcement online, since it requires marketplaces to provide notice-and-action mechanisms for illegal content, recognize trusted flaggers, and verify trader identity information. The Digital Markets Act is a separate law targeting a small list of designated "gatekeeper" platforms on competition grounds, covering issues like self-preferencing and interoperability, and it does not contain provisions about counterfeit listings, intellectual property enforcement, or content takedowns at all. Brands researching EU platform regulation for enforcement purposes should be looking at the DSA, not the DMA.

Why These Two Laws Get Confused

The Digital Markets Act and Digital Services Act were developed alongside each other, share overlapping acronyms, and both target large online platforms, which is enough for the two to get conflated in casual reference even though they regulate genuinely different things. The DMA is a competition law instrument aimed at a specific, formally designated set of "gatekeeper" platforms, meeting defined size and reach thresholds, and it addresses how those gatekeepers compete, such as restrictions on self-preferencing their own services and requirements around interoperability with third parties. The DSA is a broader content and platform accountability law applying to a much wider range of online services, and it is the one that actually deals with what a brand cares about when a counterfeit listing appears: how illegal content gets reported, reviewed, and removed, a process covered in full in how the EU Digital Services Act changes brand protection for marketplaces and online platforms.

What the DSA Actually Requires That Matters to Brand Protection

Notice-and-action mechanisms.

Platforms must provide accessible mechanisms for reporting illegal content, including counterfeit goods, and must act on valid notices, giving brands a formal, structured reporting channel rather than relying only on a platform's own discretionary policy.

Trusted flagger status.

The DSA establishes a trusted flagger mechanism, giving qualifying organizations, which can include brand protection specialists acting on a rights holder's behalf, priority handling for reports they submit, ahead of general user reports.

Trader traceability requirements.

Marketplaces must collect and verify certain identity information from third-party sellers, which supports enforcement by making it harder for a seller to operate a storefront while hiding behind anonymous or fabricated seller details.

What the DMA Does Not Cover

The DMA's obligations center on competition-related conduct: restrictions on how a small list of designated gatekeepers can rank or bundle their own products against competitors, requirements around data portability and interoperability, and limits on certain default settings and self-preferencing behavior. None of this touches intellectual property enforcement, counterfeit content, or takedown mechanisms. A brand looking to the DMA for help removing a counterfeit listing will not find a relevant provision, because the law was not built to address that problem.

Why the Distinction Matters for a Brand's Enforcement Strategy

Citing the wrong regulation in an enforcement request or escalation, or assuming DMA gatekeeper obligations create additional counterfeit reporting leverage on top of the DSA, wastes time and can weaken a brand's credibility with a platform's legal or trust and safety team, who will recognize the citation as misapplied. Building an enforcement strategy on an accurate understanding of which EU law actually governs marketplace content obligations, the DSA specifically, keeps escalation requests grounded in the right legal basis and avoids that friction. This regional groundwork is part of the broader toolkit covered in brand protection for German e-commerce companies selling across Europe.

Why Monitoring Still Needs to Track Regulatory Developments Closely

EU platform regulation continues to evolve, and enforcement guidance under the DSA in particular has been refined since its initial rollout, which means a brand's understanding of what a marketplace is obligated to do can shift over time even without a new law being introduced. Remove.tech's enforcement approach is built around current DSA mechanisms, including notice-and-action reporting and trusted flagger channels where applicable, and stays current as EU guidance develops, rather than relying on a static understanding of what a specific platform owes a rights holder. This matters across every marketplace a brand sells on in the region, including the ones covered in counterfeit risk on Zalando, OTTO, Kaufland and other European marketplaces. Brands wanting a clearer picture of their own current exposure can start with a free brand audit.

FAQ

Does the DMA apply to any marketplace a brand is likely to sell on?

The DMA applies only to platforms formally designated as gatekeepers, a specific and relatively short list determined by the European Commission based on size and reach thresholds. Some very large marketplaces may fall under this designation, but the DMA's obligations for them concern competition conduct, not counterfeit content, so it remains irrelevant to enforcement even where it does apply.

Could a future update to the DMA add counterfeit-related provisions?

The DMA is a live piece of regulation subject to ongoing review, so its scope could technically expand, but as currently written and applied, it addresses competition behavior only. Brands should track EU regulatory updates generally, but should not plan current enforcement strategy around a provision that does not exist yet.

Is the DSA the only EU-level tool relevant to counterfeit enforcement?

The DSA governs marketplace obligations specifically, but brands also rely on other EU-level mechanisms for full enforcement, including EU trademark registration through the EUIPO and the EU's Application for Action for customs detention, which operate independently of the DSA's platform obligations.

Do national laws within EU member states add anything beyond the DSA?

Yes. The DSA sets a baseline obligation for platforms across the EU, but national laws, such as Germany's Abmahnung cease-and-desist mechanism, provide additional enforcement tools that operate alongside, not instead of, DSA-based platform reporting.

Two EU laws with similar names and overlapping timelines cover very different ground. The Digital Services Act is the one that actually shapes how a brand reports and removes counterfeit content on marketplaces operating in the EU. The Digital Markets Act addresses a narrow set of competition issues among designated gatekeeper platforms and has nothing to say about counterfeit enforcement at all.

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