Page:Arkansas Lottery Commission v. Alpha Marketing.pdf/2

 ruling on the issue of sovereign immunity. ''Ark. Lottery Comm'n v. Alpha Mktg.'', 2012 Ark. 23, 386 S.W.3d 400. In this appeal, the Commission asserts that Alpha failed to plead facts sufficient to state a claim under the recognized exceptions to sovereign immunity. We reverse the circuit court's order and dismiss the lawsuit.

A discussion of the pleadings filed in this case is necessary for its disposition. Alpha filed a complaint for declaratory judgment against the Commission. In its complaint, Alpha described its business as a sole proprietorship based in Arkansas that is engaged in "advertising, promotion, and sales of goods via radio, internet, and print media throughout the state of Arkansas." It further asserted that it began using "Arkansas Lottery" and "Arkansas Lotto" in its business activities in 1994, registering both as trademarks with the Secretary of State in 2007, and that it registered "Lottery Arkansas" in 2009, claiming use of the mark since 2007.

According to the complaint, Alpha received a cease-and-desist letter from then Senior Assistant Attorney General Bradford Phelps in 2009 "threatening legal action against Alpha Marketing if it did not immediately cease all marketing efforts" using the trademarks. A series of exchanges between the Attorney General’s Office and Alpha's owner, Mr. Ed Dozier, then ensued, in which Mr. Dozier sought to resolve the matter and maintain his company’s rights to the marks. After hiring the Davidson law firm, it also contacted the Attorney General's Office on Alpha's behalf seeking a statement of intent as to the threat of litigation. Mr. Phelps replied that his office would take "no further action 'at this time,'" and referred the issue to the Commission. Alpha asserted that its certificates of trademark registration entitled it to exclusive use of the trademarks; that the Commission and the Arkansas Attorney General's