Plaintiffs George Kyle and Frank Mankovitch bring this appeal from the trial court’s grant of Georgia Lottery Corporation GLC’s motion to dismiss and GLC and Scientific Games International SGI’s motions for summary judgment. Plaintiffs had sued GLC and SGI for trademark infringement, deceptive trade practices, and breach of contract arising from GLC’s “Money Bags” lottery games of 2005 and 2007.1 We find no error and affirm. The relevant facts are not in dispute. GLC began its “Money Bags” game in Georgia in October 1994, selling approximately 20 million tickets through the end of the game in 1996. Kyle, a chiropractor, obtained a trademark on a “Moneybags” logo in 1995, but sold less than 50 games consisting of a marked velvet pouch and containing wood tiles between 1995 and 2005. In 2000 and 2002, and acting out of “an abundance of caution” based on the recent payout of a small settlement, SGI obtained consent letters from Kyle concerning GLC’s games undertaken in those years. In 2005 and 2007, SGI sent clearance letters to GLC to the effect that GLC could use the “Money Bags” name in games undertaken in those years without any danger of confusion with another mark. Between 2005 and 2007, Mankovitch contacted Kyle, obtained exclusive distribution rights to Kyle’s game, failed to market the game successfully, and accused GLC of unauthorized use of the “Moneybags” mark.
1. The trial court concluded that GLC was immune to plaintiffs’s claims because it is a state “instrumentality,” because no written contract with it had been alleged, and because no statute authorizes a waiver of sovereign immunity for equity claims against the State. This is the law. See OCGA § 50-21-22 5 defining the State of Georgia as including “any of its offices, agencies, authorities, departments, commissions, boards, divisions, instrumentalities, and institutions”; OCGA § 50-27-4 defining the GLC as “an instrumentality of the state”; Youngblood v. Gwinnett Rockdale Newton Community Svc. Bd. , 273 Ga. 715, 716 1 545 SE2d 875 2001 sovereign immunity bars action against community service board because such immunity extends to State “offices, agencies, authorities, departments, commissions, boards, divisions, instrumentalities , and institutions” emphasis supplied; Dollar v. Olmstead , 232 Ga. App. 520, 522 2 502 SE2d 472 1998 equitable tort claims against state commissioner barred by sovereign immunity.
