A South Florida-based sports bar chain accused of copying a national competitor’s trademarked catch phrase responded by modifying its catchphrase — and then asking a judge to cancel its competitor’s trademark.
Dave & Buster’s, a national chain operating as a restaurant, sports bar and arcade, filed its lawsuit in U.S. District Court in Fort Lauderdale in March against Arcade Time USA, a Florida-based chain with locations in Coral Springs, Wellington, Miami, Orlando and Jacksonville.
The lawsuit demanded that Arcade Time, which it said operated essentially the same type of business as Dave & Buster’s, stop using the term “Eat-Drink-Play-Win” on its website and in-store signage.
Dave & Buster’s registered the term “Eat Drink Play” as a trademark since 1988, the lawsuit said. Offshoots of the phrase also have been registered over the years, including, “Eat Drink Play Watch,” “Eat Drink Play Watch Sports,” “Eat Drink Play Together,” a search of the United States Patent and Trademark Office website shows.
Arcade Time responded in June by denying all of Dave & Buster’s infringement complaints and said it did not receive four “cease and desist” letters as the lawsuit asserted.
The company also claimed that Dave & Buster’s Eat Drink Play marks “are generic when used to describe (its) services” and “therefore invalid.”
Arcade Time said it was currently using the term “Play-Win-Eat-Drink,” which is “not identical or substantially indistinguishable.”
Dave & Buster’s responded by asking the court to dismiss its counterclaim, saying it “adds up to little more than a weak trickle of conclusory allegations in feeble support of an implausible claim.” Further, it claimed that Arcade Time had pointed out generic uses of the four words in the trademark, but did not claim that the entire term “as a whole” is generic.
Arcade Time then challenged the legality of the trademark in an amended counterclaim filed on Aug. 15.
The phrase “as a whole is generic for ‘restaurant services,’” the filing stated, while “third-party use of the phrase Eat Drink Play in the restaurant industry demonstrates that consumers are well accustomed to encountering the phrase to identify” restaurant services.
Several website addresses were listed in the filing to demonstrate what Arcade Time called “third-party use.”
Among them:
— A travel site promoting Sydney, Australia
— A children’s museum in Kansas City, Missouri, promoting an Eat, Drink, Play! event in September
— A Los Angeles event promoter called Drink:Eat:Play
— A website promoting Cleveland Street Market with a page titled Eat, Drink, Play!
— A page on the Dallas Observer site headlined “12 Essential Places to Eat, Drink and Play.”
“The generic phrase, ‘Eat Drink Play’ immediately names the exact nature of Dave & Buster’s services and does nothing else,” Arcade Time’s amended complaint states. “Arcade Time believes that it is and is likely to be damaged by the continued existence of the (trademark) registration, in that Arcade Time offers the same or similar services as Dave & Buster’s and has an interest in using the phrase ‘Eat Drink Play’ in its business.”
Efforts to reach attorneys for the two chains were unsuccessful by Tuesday afternoon.
Next, the sides will take their chances on mediation, as ordered on July 28 by U.S. District Judge David S. Leibowitz. The parties agreed on a mediator on Friday.
Ron Hurtibise covers business and consumer issues for the South Florida Sun Sentinel. He can be reached by phone at 954-356-4071 or by email at rhurtibise@sunsentinel.com.
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