COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71183 NASHVILLE PRODUCTIONS, INC. : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION FLATS WATERFRONT ASSOCIATES : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : MAY 29, 1997 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 283,511 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: KENNETH A. KRAUS WILLIAM J. KRAUS CAROLE A. ROTH Attorneys at Law Kraus & Kraus 1800 Ohio Savings Plaza 1801 East 9th Street Cleveland, Ohio 44114-3103 For defendant-appellant: KENNETH J. FISHER ROBERT G. MANSOUR Attorneys at Law Kenneth J. Fisher Co., L.P.A. 3500 Terminal Tower 50 Public Square Cleveland, Ohio 44113 PRYATEL, J.: Defendant-appellant Flats Waterfront Associates ("FWA" or "appellant") appeals from the trial court's decision that granted the motion for summary judgment of plaintiff-appellee Nashville Productions, Inc. ("Nashville" or "appellee") and that failed to grant appellant's cross-motion for summary judgment. For the reasons stated below, we affirm the decision of the trial court. I. Statement of Facts The record reflects that in 1986, FWA purchased the real property where the restaurant known as "Fagan's" is located. Fagan's has been in operation for thirty-seven years. Global Entertainment, Inc. originally owned Fagan's and, in 1991, sold the business, with the right to use the "Fagan's" tradename, to Nashville. On April 5, 1991, by agreement and concurrent with the sale of the business, FWA and Nashville entered into a lease of the real property for the continuing operation of Fagan's on that site. On April 24, 1991, the parties signed a "Conditional Assignment of Trade Names," in which Nashville (which then held the rights to the "Fagan's" name pursuant to the purchase agreement between Global and Nashville) conditionally transferred and assigned to FWA the "Fagan's" tradename. This conditional assignment was to become - 3 - binding (without any liability to FWA for any obligation) upon the occurrence of any of the following three noted conditions: (1) the cessation of the business by Nashville, (2) default of the lease provisions by Nashville; or (3) expiration of the lease. On January 18, 1995, Nashville initiated a complaint for declaratory judgment requesting the court to declare the April 24, 1991, Conditional Assignment of Trade Names as unenforceable, null and void and to cancel the Assignment. The matter proceeded to case management, and the briefing schedule for the matter was set by the court. The motion and cross-motion for summary judgment were filed. On August 4, 1996, after full briefing of the issues, the trial court entered judgment on appellee's motion that the Condi- tional Assignment of Trade Names was invalid and unenforceable as a matter of law. The court further denied the cross-motion for summary judgment filed by FWA. It is from these rulings of the trial court that the appel- lant, FWA, timely appeals and raises one assignment of error for our review. II. THE TRIAL COURT ERRED IN GRANTING APPELLEE'S MOTION FOR SUMMARY JUDGMENT AND DENYING APPELLANT'S CROSS-MOTION FOR SUMMARY JUDGMENT. Appellant argues that the trial court erred in (1) granting the appellee's motion for summary judgment and (2) denying its - 4 - cross-motion for summary judgment by ruling that the conditional assignment of the tradename was void as an assignment in gross. Specifically, appellant maintains that this conditional assignment is not void as an assignment in gross because both the "obvious and stated intent" of the conditional assignment was to include the transfer of the good will and business of Fagan's should Nashville cease doing business at the location. In support of its position, appellant contends that the transfer of the tan- gible assets of a business is not required in order to transfer the good will. On the other hand, appellee Nashville asserts that the Condi- tional Assignment of Trade Names fails to transfer the good will of Fagan's and is, therefore, void as a transfer in gross. Civ.R. 56(C) provides that summary judgment may be granted where the pleadings and evidence show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. In the matter sub judice, there are no facts in dispute. The question before us is whether the trial court properly granted summary judgment in ruling that the Condi- tional Assignment of Trade Name was a transfer in gross and, therefore, void as a matter of law. A tradename, as here, is a designation that is adopted and used to denominate the conduct of a business and, through its association with the business, acquires a special significance in the name. Manitowoc Sales & Service Corp. v. Manitowoc Crane & - 5 - Shovel Sales Corp. (1967), 11 Ohio Misc. 174. One purpose of a tradename is to protect the public since consumer purchasing is based on name recognition and, therefore, the name identifying the service/business must be protected to assure the customer that he or she is receiving services from the intended source. Younker v. Nationwide Mut. Ins. Co. (1963), 175 Ohio St. 1. A tradename further protects the public from being deceived into buying an infringing, unwanted service. Circle Communications, Inc. v. Hinton (1975), 74 O.O.2d 356. Another purpose of a tradename is to protect the interests of the owner of the name in the good will that has been created as to the name by keeping others from in- fringing on that good will. Younker, supra. Such protection tends to create consumer demand for the service and to protect the owner's investment in advertising and quality control. Circle Communications, supra. Rights in tradenames are acquired by the actual user. Younker, supra. A tradename cannot exist independently of some business in which it is used, and, therefore, an attempted transfer of a tradename without the transfer of the good will and business in connection with which the name has been established is void. Cloverleaf Restaurants, Inc. v. Lenihan (Cuyahoga Cty., 1947), 80 Ohio App. 477, 482. See, also, Hanover Star Milling v. Metcalf (1916) 240 U.S. 403; Linder Co. v. Myrod Shoe Co. (Cuyahoga Cty., 1930), 38 Ohio App. 182; United Razor Blade Corp. v. Akron Drug & Sundries Co. (1935), 52 Ohio App. 379. Generally, the right to use - 6 - a tradename passes to the purchaser of a business. Brass & Iron Works Co. v. Payne (1893), 50 Ohio St. 115. A valid transfer of a tradename does not require the transfer of any physical or tangible assets; all that is necessary is the transfer of the good will to which the mark pertains. The Money Store v. Harriscorp Finance, Inc. (7th Cir., 1982), 689 F.2d 666. In this instance, the record reflects that Nashville became the owner of the tradename at issue here by the purchase of the business of "Fagan's" from Global Entertainment. A review of the Conditional Assignment of Trade Names between Nashville and FWA does not indicate either (1) the transfer of the business of "Fagan's" or (2) the assignment of the good will of "Fagan's." Nevertheless, appellant FWA contends that the good will of the name "Fagan's" has attached to the real property in this instance because old customers will resort to the "old place." Spayd v. Turner, Granzow & Hollenkamp (1985), 19 Ohio St.3d 55. Appellant's reliance on Spayd is misplaced. The court in Spayd was called upon to determine whether it is against public policy to include measurable good will as an asset in the dissolution of a business. There is no language in the Spayd decision that good will accompanies real property. We can find no authority (nor has appellant given us any) that the good will of a business automati- cally attaches to the real property where the business itself is being conducted. - 7 - A review of the plain language in the documents before us, including the Lease and the Conditional Assignment of Trade Names, reveals that FWA will acquire no interest in the business of Fagan's or in the good will of the restaurant business run by Nashville upon the transfer of the tradename "Fagan's." By the Assignment, it appears that FWA is attempting to connect the name of Fagan's restaurant with the physical property that it owns. Such transfer is not recognizable under Ohio case law. Accordingly, we find that the trial court did not err when it granted the summary judgment of appellee and denied the summary judgment of appellant finding that the Conditional Assignment of Trade Name was void as an assignment in gross. The judgment of the trial court is affirmed. - 8 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, P.J. and DIANE KARPINSKI, J. CONCUR JUDGE *AUGUST PRYATEL *SITTING BY ASSIGNMENT: August Pryatel of the Eighth District Court of Appeals, sitting by assignment of the Supreme Court of Ohio. N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .