Trademark liability in online marketplaces: balancing IP and digital norms, social freedoms or goals

Agnieszka Sztoldman

Chapter 15 in Intellectual Property, Ethical Innovation and Sustainability, 2026, pp 209-221 from Edward Elgar Publishing

Abstract: This chapter proposes a framework for online marketplaces’ liability for EU trademark infringement, aligned with the Digital Services Act (DSA) and wider social goals. It asks: (1) when should marketplaces incur direct or indirect liability and when do safe harbors apply; (2) how should trademark rules interact with the DSA's due diligence and transparency duties; and (3) how should enforcement be balanced with freedom of expression, privacy and sustainability. Building on recent CJEU and national jurisprudence, it argues for an “active role” benchmark: passive hosting merits DSA safe harbors; active optimization, promotion or integrated logistics triggers full intellectual property law remedies. Knowledge standards remain negligence‑based under the DSA, with proportionate, risk‑tiered monitoring and differentiated responses to counterfeits and imitative uses. The chapter concludes by advocating that a function-based regime is needed: DSA‑anchored safe harbors for passive hosts; full IP remedies for active operators; and an open EU provision in trademark law embedding proportionality, transparency and human review to prevent over‑enforcement and align trademark protection with innovation and sustainability.

Keywords: Trademark; Infringement; DSA; Digital Norms; Sustainability; Online Marketplaces (search for similar items in EconPapers)
Date: 2026
ISBN: 9781035367764
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