Disclaiming California Implied Warranty of Title

Here's a nifty ruling by District Judge Otis Wright in the Central District of California.

The case is Mycoskie, LLC, et al v. Ebuys, Inc., et al (2:16-cv-03259-ODW (SK)). The judge's ruling granted defendant Genco Marketplace, Inc.'s motion for summary judgement. Genco claimed that it could not be sued by Ebuys d/b/a Shoe Metro (as third party plaintiff) for selling Shoe Metro counterfeit shoes that infringe trademarks. Genco claimed that in its web terms it disclaimed the implied warranty of title and against infringement under Cal. Com. Code Section 231 and that Shoe Metro acknowledged the disclaimer when it clicked through those web terms. The court agreed. The disclaimer of implied warranties included in Genco's web terms was enough to eliminate liability, even though the disclaimer did not specifically disclaim the implied warranty of infringement as it did the implied warranty of merchantability and fitness for a particular purpose.

So case dismissed.

Here's the provision in Genco's web terms:

"[Shoe Metro] agrees and acknowledges that all LIQUIDATION PRODUCT sold in accordance with this Agreement is sold "AS IS — WHERE IS" with all faults, defects or imperfections. Prior to purchasing LIQUIDATION PRODUCT, [Genco] will allow [Shoe Metro] an opportunity to inspect the goods where they are located at [Shoe Metro's] sole expense. [Genco] and the Supplier disclaim any and all express or implied warranties, including, without limitation, an implied warranty of merchantability or fitness for a particular purpose. [Shoe Metro] acknowledges that no representations have been made by the Supplier or [Genco], or relied upon by [Shoe Metro], in connection with the quality, quantity or capacity of the merchandise other than what may be set forth on the Bill of Lading, Notification of Sal Memo, manifest or packaging slip. Some or all of the merchandise may not be in usable condition."

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