What is the definition of &quot;retail&quot; or &quot;at retail&quot; for the purposes of the Song-Beverly Consumer Warranty Act? Bob, a private individual, visits a store in California — where Corp, the manufacturer, maintains a showroom — and proceeds to purchase a consumer goods. Bob, after explaining his needs relevant to the purchase, is brought the product to the store front from the back, and is prompted to make a credit card payment via an otherwise unique and atypical machine. Bob is presented a credit card machine that does not include a screen to present any terms, and he is not presented any other written or oral terms by Corp or any of its representatives. Bob pays and Corp delivers. Bob, however, does not receive an a copy of the otherwise existing owner's manual or an express warranty. The ordinary use, however, has been defined in written statements which entered the bargain in that Bob reviewed and relied on them. Before day 60 of the purchase, and the first successful use of the product, therein, Bob learns that the product does not fit for the ordinary purposes such products are used and/or for which he specified and therefore gave a reason to Corp. to know Bob's particular although not unordinary purpose to use the consumer goods. Bob returns, and Corp. refuses to replace or refund. Corp. refuses to refund or replace the item, and advises Bob that he raise his concerns with the &quot;online sales department&quot;, and Corp., therein, informs Bob that his purchase was an online purchase and the retail store does not handle any complaints. Paragraph (b) of Section 1791 states: “Buyer” or “retail buyer” means any individual who buys consumer goods from a person engaged in the business of manufacturing, distributing, or selling consumer goods at retail. As used in this subdivision, “person” means any individual, partnership, corporation, limited liability company, association, or other legal entity that engages in any of these businesses. (emphasis added) I have been looking for the relevant authority to define &quot;at retail&quot; for a while, but I could not find a statute that I am sure is relevant here. I found Sales and Use Tax Law § 6007. (a)(1)A defining that: &quot;[R]etail sale&quot; or &quot;sale at retail&quot; means a sale for a purpose other than resale in the regular course of business in the form of tangible personal property. I am not completely sure if this would not be what governs it, but I'm also not sure it is. I couldn't find a definition in U.C.C., neither in Magnuson-Moss. Is there any case law on this or some other statute's definition that applies? Authorities §1791.1 (a)(2), (b) and (c) &quot;“[A] violation . . . is not willful if the defendant’s failure to replace or refund was the result of a good faith and reasonable belief the facts imposing the statutory obligation were not present[...]&quot; (Lukather v. General Motors, LLC (2010) 181 Cal.App.4th 1041, 1051 [104 Cal.Rptr.3d 853]) ”The [Song Beverly] act provides for both express and implied warranties, and while under a manufacturer’s express warranty the buyer must allow for a reasonable number of repair attempts within 30 days before seeking rescission, that is not the case for the implied warranty of merchantability’s bulwark against fundamental defects.” (Brand v. Hyundai Motor America (2014) 226 Cal.App.4th 1538, 1545 [173 Cal.Rptr.3d 454]” “[T]he Act does not require consumers to take any affirmative steps to secure relief for the failure of a manufacturer to service or repair a vehicle to conform to applicable warranties—other than, of course, permitting the manufacturer a reasonable opportunity to repair the vehicle . . . . In reality, . . . , the manufacturer seldom on its own initiative offers the consumer the options available under the Act: a replacement vehicle or restitution. Therefore, as a practical matter, the consumer will likely request replacement or restitution. But the consumer’s request is not mandated by any provision in the Act. Rather, the consumer’s request for replacement or restitution is often prompted by the manufacturer’s unforthright approach and stonewalling of fundamental warranty problems.” (Lukather v. General Motors, LLC (2010) 181 Cal.App.4th 1041, 1050 [104 Cal.Rptr.3d 853])
The acts in question don't distinguish between online and in person sales. Both are retail sales. A retail sale is a sale for use rather than a wholesale sale for resale. Wholesale sales are exempt from sales tax and so are easy to distinguish. Online sales are still retail sales. It is a distinction without a difference. Sales and Use Tax Law § 6007(a)(1) and common law case law would suffice. There is also case law under the UCC, and the relevant federal statutes. But, I doubt that the argument of the vendor would be that it didn't make a retail sale (at least once their lawyers got involved). More importantly, there is nothing that says that online sales aren't retail sales. Bob should contact the online sales department to seek a remedy since he was advised by the company to contact that department. But the part of the company handling his complaint doesn't change his rights. Warranty rights don't depend upon the intent of the parties. If a warranty arises and it good isn't as warranted, there is a legal right to a remedy. If a store doesn't honor one's legal warranty rights, then you sue the store for damages, typically, in a court of limited jurisdiction, or if there is an arbitration clause, in a consumer arbitration forum (some of which are not actively doing business due to controversies in recent years, leaving a judicial forum open).
It is actually because "this is important". Under US law, disclaimers must be "conspicuous" (UCC 2-316). So you can talk regularly when you're just stating the terms, but if you're disclaiming liability, YOU MUST BE CONSPICUOUS ("to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous"). There are many ways to make text conspicuous, so bold or larger type would do, but all-caps is pretty bullet-proof from a technological perspective. Thanks to ohwilleke for salient citations: invalidation of a plain-type buried indemnification clause, all-caps clause held to be sufficient, law review article on the conspicuousness requirement.
No, it does not. There is indeed a 2-year guarantee for all goods, but "goods" is defined to be a "tangible movable item" according to Directive 1999/44/EC Article 1, subsection 2(b). In less legalese, a physical item; software doesn't count. While there has been discussion about extending this protection to software, I'm not aware of this having been done yet. Even if it were, determining whether goods are "faulty" ultimately comes down to whether it conforms to the contract of sale (Article 2). I think it's likely that vendors in this area would put a disclaimer for unforeseen security vulnerabilities, or something to that effect.
You had bought product A. That constitutes you offering the seller a contract for you to get product A for your money. They keep the money and send product B - and now are in breach of the contract, as that is materially different from the contract both agreed to. Legal recourse is, depending on the customer protection laws, a refund of the payments or getting the correct product A. If you have a right for the Product A depends on exactly how it was advertized and the exact ToS.
Yes, that's true Common words are not trademarkable, as is a descriptive phrase, because a trademark needs to be distinctive. As the Netherland Trademark Office tells you, your mark can't fit in any of these categories: literal - Your tradename or logo must not literal describe or depict your goods or services. promotion - The trademark must amount to more than a value judgment alone. misleading They even have an FAQ about that! The trademark is descriptive - which is the most common reason. A trademark is descriptive when it describes the properties of the product or service or promotes these. For example: the words 'super fast bike' for the product category 'bicycles'. Please note: the wording here is not always in common usage. The trademark 'medi' is not listed in the dictionary as a common abbreviation for 'medical'. All the same, it is a common designation that consumers will understand right away in the discriptive sense. So, this type of trademark could also be descriptive and hence declined. Computerrepair is a literal description of what the business does, just like Biomild on a mild biological yogurt just describes it.
In fact, the first recognition of the First Sale doctrine came about precisely because a publisher attempted to do something of the nature of what you suggest. In Bobbs-Merrill Co. vs Straus, the Bobbs-Merrill Corporation attempted to enforce the following restriction, printed on the inside of a book it published: "The price of this book at retail is one dollar net. No dealer is licensed to sell it at a less price, and a sale at a less price will be treated as an infringement of the copyright." They made the mistake of attempting to enforce it against, among others, R.H. Macy and Co., who they then had to take to court - and lost. This established the First Sale Doctrine, which then later (in 1976) was codified (in 17 U.S. Code § 109. Textbooks recently tested another element of this; in the 2013 case, Kirtsaeng v John Wiley and Sons Inc., the Supreme Court held that the First Sale doctrine trumped a notice forbidding selling a book outside of a particular territory or region (Kirtsaeng imported textbooks from Thailand, where they were much cheaper than in the US, and resold them at a profit in the US).
Since you bought these online the Consumer Contract Regulations are going to be in effect here (if the price of the goods was over £42 anyway), (legislation) Where your cutting the tags off and wearing them outside for an hour comes into play is that would probably be considered &quot;excessive handling&quot; and they might be able to make a deduction from the amount of the refund. Your business can make a deduction from the value of the goods if you consider the customer has handled the goods excessively. You can’t deduct monies from the refund simply because the goods have been removed from the packaging or because the goods have been tried on or checked. In essence, distance selling purchasers are entitled to handle goods in the same way that they would in a normal retail store. That therefore includes touching the item or trying it on. Since no retail store is going to let you cut the tags from a pair of shoes and walk outside for an hour in them I'd say that test is probably met here. How much can they deduct? As the CCR puts it (emphasis mine): (9) If (in the case of a sales contract) the value of the goods is diminished by any amount as a result of handling of the goods by the consumer beyond what is necessary to establish the nature, characteristics and functioning of the goods, the trader may recover that amount from the consumer, up to the contract price. Which is likely where the &quot;saleable condition&quot; aspect is coming from - if they aren't in a condition where the retailer can sell them on they've essentially lost their full value. If the retailer makes returned goods available for sale on the site at reduced prices (like the &quot;Amazon warehouse&quot; deals) then a deduction of the difference in sale price between that and full retail is more likely.
Similar to this question and this one, the Uniform Commercial Code requires that exclusion of warranty be conspicuous. While it does not specify the manner in which text should be made conspicuous, putting it in all caps certainly has that effect if the surrounding text is in sentence case. The meaning is that all products come with implied warranties of merchantability (it is good enough to be sold to you) and fitness for purpose (it will do what it's meant to, and what you've been told it will do). This text excludes this product from those warranties (that is, those warranties do not apply). It also disclaims liability for claims and damages, which means that if this software causes you harm or damage, you can't file a suit to recover any loss. Whether this is enforceable would be decided by a court.