Platform Law and the Brand Enterprise

Abstract

The emergence of platforms has transformed the digital economy, reshaping and recasting online transactions within the service industry. This transformation, as many have argued, has created new and unimagined challenges for policymakers and regulators, as well as for traditional, offline companies. Most scholarship examining platforms discuss their impact on employment law or consumer protection. Yet trademark law, which is central to the success of the platform enterprise, has been mostly overlooked within these discussions. To address this gap, this article discusses the emergence of two central forms of platform entrepreneurship — the platform, or “macrobrand” and the platform service provider, or the “microbrand.” As we argue, the macrobrand and microbrand interact with trademark law — and one another — in ways that challenge conventional models of trademark application and expose their existing limitations. In exposing how platform architecture causes an unsustainable tension between these two formations, this Article suggests a two-prong approach utilizing both legislative adjustments to trademark law, as well as common law adjustments, to modernize trademark doctrine for the digital economy.

Keywords: platforms, internet architecture, trademarks, branding, information economy, intermediaries, entrepreneurship