A seller was taken down eleven times in six months. Each time, the listing came back within days, under a new account or a slightly different product name. The brand kept filing notices, and the platform kept removing listings, and nothing changed, because the notices were aimed at listings and the seller was the problem. The EU Digital Services Act has a rule for exactly this situation, and it is the rule brands should be building their files around.
The rule is Article 23 of the DSA, Regulation (EU) 2022/2065. It requires online platforms to suspend, for a reasonable period, users who frequently provide manifestly illegal content. Counterfeit goods are manifestly illegal content when they infringe a trademark, and a seller who relists after eleven takedowns is a user who frequently provides it. The rule does not remove listings. It removes the user.
The article sets a duty, not a number. It says platforms must suspend users who frequently provide manifestly illegal content, after giving a prior warning, and for a reasonable period of time. It does not say how many times counts as frequently, and it does not say how long the suspension must last. That vagueness is a problem for brands, because it means the platform decides the threshold, and the platform's threshold is usually higher than the brand's.
The way to make the rule work is to give the platform a pattern it cannot ignore. One takedown is a listing. Five takedowns on the same seller, with dates, is a pattern. Eleven takedowns with relists in between is a case. The file has to show frequency, and it has to show that the content is manifestly illegal, which means the infringement has to be obvious from the listing itself: the trademark, the price, the seller's lack of authorization. A file that shows the pattern and the obviousness is a file the platform's trust and safety team can act on.
The relisting problem has a second half, which is identity. A suspended seller comes back under a new name, and the platform treats the new name as a new user. Article 30 of the DSA addresses this by requiring marketplaces to verify the identity of traders before they can sell, collecting and checking the trader's name, address, and identification. A marketplace that verifies traders has a way to link the new account to the old one, and a brand that points to the verification data has a way to prove the link.
The verification is not perfect, and sellers who want to evade it will find ways, but it raises the cost of coming back. A seller who has to produce identification to open a new account is a seller who thinks twice before opening the tenth one. The brand's job is to make the platform use the verification data it already collects, by filing the pattern and naming the link between the accounts.
The United States has its own version of the rule, in section 512(i)(1)(A) of the Copyright Act. It makes a repeat-infringer policy a condition of the safe harbour: a platform that wants immunity from copyright claims has to reasonably implement a policy for terminating repeat infringers. The rule is about copyright, not trademarks, but the logic is the same, and the platforms' repeat-infringer policies usually cover both. A brand that files trademark takedowns and copyright takedowns on the same seller is building a file under both laws at once.
The economics explain why the file matters. A takedown notice takes 15 to 40 minutes to prepare properly, and the platform takes two days to three weeks to review it. A relist takes about four minutes. The brand that files one notice at a time will always lose the arithmetic. The brand that files a pattern, and asks for a suspension under Article 23 or a termination under 512(i), is playing a different game, and it is the only game that removes the seller instead of the listing.
Keep reading: what happens to counterfeits after a takedown, how a test purchase builds counterfeit evidence, and what goes in a takedown evidence pack cover the nearby cases in this series.
Article 23 of the DSA, Regulation (EU) 2022/2065, requires online platforms to suspend, for a reasonable period, users who frequently provide manifestly illegal content, after a prior warning. Counterfeit goods are manifestly illegal content when they infringe a trademark, and a seller who relists after repeated takedowns fits the definition.
The DSA does not set a number. The platform decides the threshold, and it is usually higher than the brand expects. The practical approach is to build a file that shows the pattern: five or more takedowns on the same seller, with dates and relists in between, is a case the platform's trust and safety team can act on.
Article 30 requires marketplaces to verify the identity of traders before they can sell, collecting the trader's name, address, and identification. A marketplace that verifies traders can link a new account to a suspended one, and a brand that names the link in its filing gives the platform a reason to use the data it already collects.
Yes. Section 512(i)(1)(A) of the Copyright Act makes a repeat-infringer policy a condition of the safe harbour: a platform that wants immunity has to reasonably implement a policy for terminating repeat infringers. The rule is about copyright, but the platforms' policies usually cover trademark repeat infringers too.