INTA Submits Comments to the E.U.’s Consultation on the “Trusted Flagger” Mechanism

INTA has submitted comments on an important measure in the European Union’s Digital Services Act (DSA): the so-called “trusted flagger” mechanism.

A trusted flagger is an EU-recognized entity whose notices of illegal online content receive priority treatment from online platforms under the DSA. Established under Article 22 of the DSA, the system is designed to enable qualified organizations  to notify online platforms of illegal content through a prioritized and trusted channel.

In May, the European Commission published draft guidelines aimed at clarifying how the mechanism should operate and how trusted flagger status should be assessed, seeking comments on the guidelines through a consultation that closed in July. After gathering feedback, the Commission plans to adopt the guidelines in the second half of 2026.

Recognizing the significance of this initiative, INTA submitted comments to the consultation highlighting several aspects of particular importance for intellectual property (IP) rights holders and brand protection professionals.

The DSA is rapidly becoming one of the EU’s most important regulatory frameworks for the online environment. While much attention has focused on the obligations imposed on online platforms, a number of implementation measures, such as the trusted flagger mechanism, will ultimately determine how effective the DSA becomes in practice.

For trademark owners and anticounterfeiting practitioners, the trusted flagger system has the potential to become a valuable enforcement tool. Every day, rights holders monitor online marketplaces, social media platforms, websites, and other digital services for counterfeit goods, trademark infringements, and other forms of illegal commercial activity.

Typically, rights holders themselves possess the most detailed knowledge of their products, distribution channels, and enforcement history. This specialized expertise enables them to identify problematic content with a high degree of accuracy.

INTA therefore welcomed the Commission’s clarification that IP rights holders may be eligible to obtain trusted flagger status. This recognition reflects an important practical reality: those closest to the infringement are frequently best placed to detect it.

Furthermore, INTA’s comments emphasized that the effectiveness of the trusted flagger framework will depend on allowing qualified actors to participate efficiently and on an equal footing.

While industry associations and collective initiatives can make valuable contributions, they cannot always replace the product-specific expertise and operational experience of individual right holders. INTA therefore encouraged the Commission to clarify that applications submitted by individual rights holders should receive equal consideration and should not be disadvantaged simply because collective solutions also exist.

The Association also noted that many companies rely on specialized service providers to conduct online enforcement activities on their behalf. Reflecting this operational reality could increase the flexibility and practical effectiveness of the system while preserving appropriate accountability mechanisms.

Another important issue concerns the assessment of objectivity and independence. The draft guidelines acknowledge that commercial interests may be relevant when assessing trusted flagger applications. While INTA supports safeguards designed to ensure accuracy and reliability, it also cautioned against any implication that the existence of legitimate commercial interests automatically undermines objectivity.

The protection of trademarks and other IP rights covers broader public policy objectives, including consumer protection, product safety, and efforts against fraud and counterfeiting. For this reason, INTA encouraged the Commission to focus on objective indicators such as expertise, methodologies, and historical accuracy rather than assumptions regarding commercial motivations.

The success of the trusted flagger mechanism will depend not only on who participates, but also on whether the system remains workable in practice. INTA welcomed provisions aimed at streamlining onboarding procedures, encouraging dedicated communication channels, and promoting technical solutions that facilitate efficient cooperation between trusted flaggers and online platforms.

The Association also highlighted the importance of maintaining proportionate reporting requirements and avoiding unnecessary administrative burdens that could discourage qualified participants from engaging with the system.

Particular attention was also drawn to the treatment of so-called “inaccurate notices.” In areas such as IP enforcement, legal assessments can be complex and may legitimately differ between notifying entities and platforms. INTA therefore called for a proportionate and context-specific interpretation that takes into account good-faith efforts and the complexity of the issues involved.

As the trusted flagger framework moves from policy design to practical implementation, ensuring the meaningful participation of qualified IP stakeholders will be essential to its success.

The European Commission’s draft guidelines represent an important step toward greater consistency and legal certainty across the EU. At the same time, continued attention to expertise, proportionality, operational effectiveness, and cooperation will help ensure that the mechanism delivers its intended objectives.

For brand owners, consumers, online platforms, and regulators alike, the trusted flagger system offers an opportunity to improve the detection of illegal content while strengthening trust in the digital ecosystem. Ensuring that those with the most relevant expertise have a meaningful role to play will be one of the key factors determining its long-term effectiveness.

Although every effort has been made to verify the accuracy of this article, readers are urged to check independently on matters of specific concern or interest.

© 2026 International Trademark Association