The Georgia Supreme Court heard their side of the dispute Monday as well as attorneys for the Georgia Lottery Corp. and Atlanta game-maker Scientific Games, who argued the trademark was never really valid.
It all revolves around the name "MoneyBag$."
In 1994, the lottery used the name on 20 million tickets over the next two years. Then George Kyle, a former Oakwood chiropractor, registered the name as a trademark but sold fewer than 50 copies of a game he created with that name. His game includes wooden tiles that players draw from a velvet bag with the logo on it.
In 2000, the lottery wanted to sell more of the instant-game tickets and got permission from Kyle to use it, and again in 2002. Then in 2005, after some personnel turnover at the lottery and Scientific Games, the lottery didn't get his permission before using the name this time.
Now Kyle and the man to whom he gave his rights, Frank Mankovitch, are suing.
The fact that the lottery asked permission proves who had the right to the name, according to Kyle and Mankovitch's lawyer, Todd Merolla.
"That admits and acknowledges my clients' rights as of that point in time in 2000 and 2002," Merolla said. "If they did have rights in 2000 and 2002, how did they lose them?"
The court could conclude they lost their right to the name by abandoning it. A Fulton County judge threw out the lawsuit without a trial; Merolla urged the seven-member Supreme Court to send the case back to a jury trial to decide whether the name was abandoned.
The two men never really used the trademark, according to Mark VanderBroek, a private attorney for the Lottery Corp. and Scientific Games. Neither man marketed their tile game commercially, especially compared to the millions of scratch-off tickets the lottery sold.
"The old courts used to say, if you don't have trade, you don't have a trademark," he told the justices.
The Fulton County judge tossed the case before letting a jury hear it because he concluded the Lottery Corp. can't be sued as a part of state government protected by sovereign immunity.
Merolla said the Lottery Corp. is independent of the state because it has its own board, doesn't get state appropriations and isn't subject to the state's Open Records Act.
Assistant Attorney General Julie Jacobs disagreed, arguing that the Lottery Corp. is indeed part of state government created by a constitutional amendment to fund the HOPE Scholarship and Pre-K.
"Clearly that serves a statewide function with statewide benefits," she said. "... Clearly, the state and the public have an interest in protecting these funds. If the Georgia Lottery does not serve a state purpose, then I don't know what purpose it can possibly serve since its funds exclusively fund state educational programs."
A decision typically takes three or four months.