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goods of the kind). As with the warranty of title, per the majority view, the warranty against infringement is breached if a third party has a colorable infringement claim that casts a significant shadow over the buyer’s right to use the goods or entitlement to the goods. Also, this warranty is breached, if at all, when the seller tenders delivery of the goods. [ See U.C.C. § 2-312(3) (1951); Abbott Laboratories v. Adelphia Supply, USA , 15-CV-5826 (CBA) (LB), 2017 WL 6014322 (E.D.N.Y. Aug. 14, 2017); 2 Hawkland UCC Series § 2-312:3, Westlaw (database updated June 2021); Merchant with Respect to Goods of the Kind, supra .] b. Buyer’s Warranty against Infringement Oftentimes, a buyer will supply the seller with manufacturing specifications for the goods. If so, then Article 2 imposes, against the buyer, a warranty against infringement. Here, the buyer must hold the seller harmless (indemnify the seller) for any intellectual-property infringement claim arising out of compliance with the specifications. [U.C.C. § 2-312(3) (1951); 2 Hawkland UCC Series § 2-312:3, Westlaw (database updated June 2021).] c. Excluding or Modifying the Warranties against Infringement The warranties against infringement are far easier to exclude or modify than the warranty of title, for the warranties against infringement apply only “unless otherwise agreed.” [U.C.C. § 2-312(3) (1951).] Here, a blanket disclaimer of warranties, such as selling the goods “as is,” will normally suffice to disclaim the warranties against infringement. [2 Hawkland UCC Series § 2-312:4, Westlaw (database updated June 2021).] Implied Warranty of Merchantability Perhaps the most consequential warranty in all of Article 2 is the implied warranty of merchantability, found in § 2-314. This warranty is certainly a favorite testing topic of law professors and bar examiners, maybe because it is a cornerstone of products-liability law. The implied warranty of merchantability applies only to a seller who is a merchant with respect to goods of the kind. In any contract for the sale of goods (assuming the implied warranty of merchantability is not validly disclaimed under § 2-316), such a merchant warrants that the goods will be merchantable . Some states, however, have exempted specified transactions from the implied warranty of merchantability, for example, sales of blood products. [U.C.C. § 2-314(1) (1951); 2 Hawkland UCC Series § 2-314:2, Westlaw (database updated June 2021); Merchant with Respect to Goods of the Kind, supra ; Excluding and Modifying Warranties, infra .] 1. Nonspecialized Sellers and Sealed Containers Some cases hold that the implied warranty of merchantability does not apply to sales (1) of products in sealed containers (2) by nonspecialized merchants, such as big-box retailers and
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