When launching a new brand, it’s easy to assume that a short, catchy phrase like “Eat Drink Play” is too generic to cause legal problems. But as a recent trademark lawsuit shows, even seemingly simple phrases can carry major legal weight—especially when they’ve been in use for decades.

In a developing case, Dave & Buster’s has filed suit against a Florida arcade and dining chain, Arcade Time USA, over their use of the phrase “Eat Drink Play Win.” Although the addition of the word “win” might appear to distinguish the phrase, a deeper look reveals why this could be a clear instance of trademark infringement.

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Same Industry, Similar Phrase: A Risky Combo

The core issue? Both companies operate in the same market—food service and arcade entertainment. When it comes to trademarks, context matters. Two businesses can sometimes use a similar name or phrase if they serve completely different audiences or industries, but that’s not the case here.

• Dave & Buster’s has used “Eat Drink Play” since 1988.
• In 1997, they updated their trademark to include arcade-related services.
• Arcade Time, established in 2021, began using “Eat Drink Play Win” despite receiving multiple cease and desist letters.

The result? A strong case for Dave & Buster’s. The added word “win” doesn’t do enough to differentiate the phrase, especially given the identical business models.

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How Generic Can a Trademark Be?

Not all trademarks are created equal. Generic phrases are typically harder to protect, but consistent use over time can build a strong brand association, which the USPTO (United States Patent and Trademark Office) considers during registration.

In Dave & Buster’s case:

• The phrase has been in use for over 35 years.
• Their branding has built a clear connection between the phrase and their business.
• The mark is no longer just a phrase—it’s part of their identity.

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Key Takeaways for Business Owners

This case is a reminder that even minor overlaps in branding can result in major legal issues. Here’s what you should always do before finalizing your brand:

• ✅ Search the USPTO database thoroughly.
• ✅ Avoid phrases already associated with businesses in your industry.
• ✅ Consult with an IP attorney before launching branded material.
• ✅ Understand that “small differences” aren’t always enough to escape infringement claims.

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Protect Your Brand from Day One

If you’re operating a small business, a lawsuit—even one you might win—can be financially devastating. Legal fees and the time investment alone can derail growth or even lead to closure.

At Mindful Counsel, we don’t just protect your intellectual property—we empower you to understand it. Our team provides professional guidance, comprehensive trademark support, and education to help you make the best decisions for your brand.

Your brand deserves to be original and protected. Let us help you make it happen.

 Guest post by Cameron Pickle, Associate Law Clerk

Have more questions? Reach out about how we can help protect your business and legacy.