Page:Arkansas Lottery Commission v. Alpha Marketing.pdf/14

 undisputed facts demonstrate that the Attorney General's Office effectively retracted the alleged threat to take Alpha's property.

Alpha pleads that ongoing acts of trademark infringement by the Commission constitute an unconstitutional taking of its property. In support of this assertion, Alpha argues that infringement on a trademark is analogous to a taking, that it has established a vested property right in its trademarks, and that each time the Commission infringes on its trademarks, there is a continuous taking.

We decline to address in this case whether a trademark infringement committed by a state entity can give rise to a cognizable takings claim under the Arkansas Constitution. Instead we are guided by Austin v. Arkansas State Highway Commission, 320 Ark. 292, 895 S.W.2d 941 (1995), where we affirmed the dismissal of the plaintiffs' action against the Highway Commission, which erected a barrier, effectively blocking access to their land. In dismissing the case, the court relied on the principle that a "landowner, claiming a taking of property, may seek either prospective injunctive relief in chancery court or damages from the State Claims Commission." Id. at 296, 895 S.W.2d at 943. Alpha's continuous-takings argument is tantamount to a finding that once the Highway Commission erected the barrier blocking the Austins' access to their land, they continued to suffer damages each day their access was denied, thereby entitling them to injunctive relief. Because Alpha argues that the cease-and-desist letter constituted the "taking," and thus the taking had already occurred prior to its having filed the first complaint, its claim for injunctive relief is barred by the defense of sovereign immunity.

In conclusion, we hold that the Commission is an entity of the State entitled to the