Trademark protection with safe harbors are the vital internal link to the platform economy

Central to these questions remains the ubiquity of the brand enterprise, which affects nearly every layer of platform architecture. Trademarks are central to the success of the platform economy, but few commentators have really delved into the question of how trademark law both governs and is governed by - the emergence of these new economies. Thus, this Article lays out a spectrum of trademark interactivity, identifying the emergence of two central forms of platform entrepreneurship, and then analyzes how the design and architecture of these new forms ushers in new challenges and opportunities for the modernization of trademark law altogether.

Trademark law plays a central, determinative role in the success or failure of the platform enterprise. At the broadest level, in Part II, this Article argues that the platform economy facilitates the emergence of what is called "macrobrands" - the rise of platform economies whose sole source of capital inheres in the value of the brand itself - the Airbnbs, Ubers, and eBays of the world.23 At the narrowest level, Part III argues that the platform economy, with its empowerment of the individual, has also facilitated a parallel emergence of the "microbrand" - the rise of discrete, small enterprises made up of individual businesses, each of whom have a strong interest in utilizing the basic principles of branding and trademark protection.

Indeed, this Article views the platform economy as a central opportunity to modernize existing trademark law to accord with the challenges of these new business models. As shown in Part II and Part III, the interaction between macrobrands and microbrands challenges trademark law to evolve to address the new issues presented by platform economies. At the same time, however, our existing frameworks are capacious enough to meet the challenges platforms pose, underscoring the wisdom of the basic, bedrock trademark principles in the process. In Part IV, we outline a host of suggestions to modernize, rather than displace, trademark law for the digital economy. While change can occur by legislation or voluntary measures, this Article focuses specifically on the formation of statutory safe harbors and the modification of the standards for infringement in common law. As this Article shows, these changes can both protect and encourage the vibrancy of the platform economy in an age of legal uncertainty.