Dave and Busters Sues for Trademark Infringement

Restaurant chain Dave and Busters has long been a place where customers can eat, watch sports, and play arcade style video games, which can lead to credits that can be redeemed for prizes inside Dave and Busters stores. Since 1988, the store has used the words “eat, drink, play” as part of its marketing strategies.

The chain has used (and owns a trademark for) “eat drink play” in marketing materials, and has used the phrase in conjunction with other verbs, such as “eat drink play watch sports,” or “eat drink play together,” among others.

Lawsuit Alleges Infringement

According to a recent lawsuit filed by the company, it sent numerous cease and desist letters to a local establishment called Arcade Time, which was using the phrase “eat drink play win” on its physical signage and marketing materials. Dave and Busters says that these letters were ignored by Arcade Time.

Part of trademark protection is establishing that the trademark owners have used, exclusively, a given phrase, logo, picture, or design, and that in the public eye, those things are tied to the trademark owner. As such, Dave and Busters alleges in its federal infringement lawsuit that “eat drink play” and its variations are not only owned by Dave and Busters, but that the public knows the phrase to be associated with Dave and Busters.

Public Confusion

Part of the damages that Dave and Busters alleges, as is the case potentially in all trademark lawsuits, is public confusion—that the general public won’t understand that Arcade Time and Dave and Busters are separate, and thus, the name, reputation and public opinion of Dave and Busters could be damaged by this public confusion.

The case is made stronger by the fact that Arcade Time is also a “gaming location,” with video games, billiards, and other recreational activities, including food and drink.

Because public confusion is the main concern in trademark infringement cases, there are cases where two companies may use the same phrase, saying, design, or other trademarked item, so long as the two businesses or users or industries are so completely unrelated, that the public could never confuse them.

For example, nobody would ever confuse “Apple’s Nail Salon,” with “Apple Inc.,” the company that makes iPhones, computers and electronics. But if you open a small electronic repair shop and call it “Apple Repairs,” you may be venturing into the category of infringement.

This is why trademark owners must enforce their trademarks. If a trademark becomes so widely used by everybody that it is not uniquely associated with the trademark owner, it can become generic, and thus, lose trademark protection.

Secondary Meaning

Trademarks have to have acquired secondary meaning. For example, although the target symbol may look like just a target, if you showed the Target store’s logo to anybody, they would recognize it as the store Target. Those red and white circles have likely acquired a secondary meaning in the eyes of the public.

Have an intellectual property infringement problem? Contact the West Palm Beach commercial litigation attorneys at Pike & Lustig for help.

Source:

sun-sentinel.com/2025/03/26/dave-busters-accuses-local-restaurant-chain-of-trademark-infringement/