Mycoskie, LLC v. Ebuys, Inc.

*1079 I. INTRODUCTION

Third-Party Plaintiff Ebuys, Inc. d/b/a Shoe Metro ("Shoe Metro") alleges that Third-Defendant Genco Marketplace, Inc. ("Genco") breached the implied warranty of title and against infringement, under Cal. Com. Code § 2312 , when Genco sold Shoe Metro counterfeit shoes. Genco now moves for summary judgment alleging that Shoe Metro waived the protections under section 2312 in writing and is, therefore, barred from bringing a claim for breach of implied warranty. In response, Shoe Metro argues that (1) there are factual disputes as to whether the contract Genco attaches to its Motion for Summary Judgment is actually the contract entered into between the parties; (2) there is a triable issue of fact as to whether Shoe Metro actually assented to the contract; (3) the alleged agreement containing the waiver does not disclaim the implied warranty against infringement; and (4) the limitation on implied warranties Genco seeks to enforce is unconscionable.

For the following reasons, the Court GRANTS Genco's Motion for Summary Judgment.

II. BACKGROUND

A. Procedural Background

Plaintiff Mycoskie, LLC initiated this trademark infringement action against Shoe Metro on…