UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF NORTH CAROLINA HANESBRANDS INC., Plaintiff, v. LULULEMON ATHLETICA CANADA INC.

, Defendant. _______________________________ ) ) ) ) ) ) ) ) ) ) Civil Action No. 1:13-cv-1024

COMPLAINT FOR DECLARATORY JUDGMENT JURY TRIAL DEMANDED

Through counsel, Plaintiff Hanesbrands Inc. (HBI or Plaintiff) brings this lawsuit against Defendant lululemon athletica canada inc. (lululemon or Defendant), and alleges as follows: THE PARTIES 1. HBI is a corporation organized under the laws of the State of Maryland

with its principal place of business at 1000 East Hanes Mill Road, Winston-Salem, North Carolina, 27105. HBI sells branded apparel products such as T-shirts, bras, panties, mens underwear, kids underwear, socks, hosiery, casualwear, and activewear, including tank tops that incorporate an attached bra. HBI does business in the state of North Carolina and this judicial district. 2. Upon information and belief, lululemon is a corporation organized under

the laws of the Province of British Columbia, with its principal place of business at 400 1818 Cornwall Ave, Vancouver, British Columbia, V6J 1C7. Upon further information

and belief, lululemon does business in the state of North Carolina and this judicial district. JURISDICTION AND VENUE 3. HBI brings its claims pursuant to the Declaratory Judgment Act, codified at

28 U.S.C. 2201 and 2202, and pursuant to the patent laws of the United States, including, but not limited to, 35 U.S.C. 271, 281, 284, and 285. 4. 1338(a). 5. Upon information and belief, this Court has personal jurisdiction over Subject matter jurisdiction exists pursuant to 28 U.S.C. 1331 and

lululemon under at least N.C. GEN. STAT. 1-75.4, as lululemon has sufficient contacts with North Carolina under the parameters of that statute. Upon information and belief, lululemon has purposefully advertised, sold, and distributed its products to customers in North Carolina and in this judicial district through retail stores, including one such retail store located in Greensboro, North Carolina, as well as through its interactive website. Upon further information and belief, lululemon has also advertised, sold and distributed its products into the stream of commerce in the United States with the reasonable belief and expectation that such products would periodically flow into North Carolina and into this judicial district. 6. Pursuant to 28 U.S.C. 1391, the United States District Court for the

Middle District of North Carolina is the appropriate venue for this action, as lululemon is subject to the personal jurisdiction of this Court, and, upon information and belief, a
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substantial portion of the acts giving rise to the claims at issue in this litigation occurred in this district. LULULEMONS CLAIM THAT HBI AND TARGET INFRINGE THE 665 DESIGN PATENT 7. lululemon claims to be the sole owner of United States Design Patent No.

D654,665S (the 665 Design Patent). 8. On October 30, 2013, lululemon sent a letter to HBI and its customer,

Target, accusing them of making and selling tank tops (the Accused Products) that infringe the 665 Design Patent. Among other things, lululemons letter demanded that HBI and Target: (a) immediately cease and desist manufacturing, importing, advertising, selling or distributing the Accused Products or any products similar thereto; (b) provide numerous representations and warranties confirming that all such activities had ceased and would not recommence; (c) agree to a press release stating that HBI and Target have infringed the 665 Design Patent and would no longer be manufacturing and selling the Accused Products; (d) produce extensive documentation relating to the design, manufacturing, sales and inventory of the Accused Products; and (e) enter into a formal agreements stipulating to pay lululemon liquidated damages of $50 per garment for any future sales of any allegedly infringing garments. (Ex. A, October 30, 2013 Letter from lululemon). 9. On behalf of itself and Target, HBI responded to lululemons cease and

desist letter on November 15, 2013, by, among other things, denying that the Accused Products infringe the 665 Design Patent, and conveying HBIs intention to proceed with
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the underlying declaratory judgment action in order to preserve its rights and the rights of its customer to continue selling the Accused Products and any other tank / bra garments similar thereto. 10. Upon information and belief, the Accused Products do not infringe the 665

Design Patent. 11. Upon information and belief, the 665 Design Patent is invalid for failure to

meet the requirements of 35 U.S.C. 101, 102, 103, and/or 112, in view of, but not limited to, material prior art and other information that indicates that the 665 Design Patent was anticipated or would have been obvious at the time the claimed design(s) was made, and the fact that the figures of the 665 Design Patent are vague and indefinite. 12. Due to lululemons assertion of the 665 Design Patent against HBI and its

customer, there is an actual and justiciable controversy between the parties concerning the infringement and validity of that patent arising under the Patent Act (title 35 U.S.C. 1 et seq). 13. HBI is entitled to have the alleged infringement issue resolved by virtue of

a declaratory judgment of non-infringement and/or invalidity in order to clear the uncertainty created by lululemons assertion of infringement and threats to potentially seek injunctive relief against HBI and its customer if lululemons demands were not met.

COUNT ONE Declaratory Judgment of Non-Infringement of U.S. Design Patent No. D654,665S 14. HBI restates and incorporates by reference the allegations in Paragraphs 1

though 13 of the Complaint. 15. lululemon has asserted that HBI and its customer have infringed and is

infringing the 665 Design Patent by selling the Accused Products. 16. Patent. 17. Due to lululemons assertion of the 665 Design Patent against HBI and its The Accused Products do not infringe any valid claim of the 665 Design

customer, there is an actual and justiciable controversy between the parties concerning the infringement of that patent arising under the Patent Act (title 35 U.S.C. 1 et seq). 18. A judicial declaration is necessary and appropriate so that HBI may

ascertain its rights with respect to the 665 Design Patent. 19. HBI requests that the Court enter a declaratory judgment that HBI and its

customers have not infringed and are not infringing any valid claim of the 665 Design Patent. COUNT TWO Declaratory Judgment of Invalidity of U.S. Design Patent No. D654,665S 20. HBI restates and incorporates by reference the allegations in paragraphs 1

though 19 of the Complaint.

21.

lululemon has asserted that HBI and its customer have infringed and are

infringing the 665 Design Patent by selling the Accused Products. 22. Patent. 23. The 665 Design Patent is invalid for failure to comply with the The Accused Products do not infringe any valid claim of the 665 Design

requirements of 35 U.S.C. 101, 102, 103, 112, and/or other applicable provisions of the Patent Laws, in view of, but not limited to, material prior art and other information that indicates that the 665 Design Patent was anticipated or would have been obvious at the time the claimed design(s) was made, and the fact that the figures of the 665 Design Patent are vague and indefinite. 24. Due to lululemons assertion of the 665 Design Patent against HBI and its

customer, there is an actual and justiciable controversy concerning the validity of that patent arising under the Patent Act (title 35 U.S.C. 1 et seq). 25. An actual case or controversy therefore exists as to whether the 665

Design Patent is valid. 26. HBI requests that the Court enter a declaratory judgment that the 665

Design Patent is invalid. PRAYER FOR RELIEF WHEREFORE, HBI respectfully requests the following relief: a. that this Court declare that HBI and its customers have not infringed and are not infringing, directly or indirectly, the 665 Design Patent;
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b. that this Court declare the 665 Design Patent invalid; c. for an injunction permanently restraining lululemon and its employees and agents from asserting that HBI or its customers have infringed or are infringing the 665 Design Patent; d. that this Court award HBI its costs and attorneys fees associated with this action; and e. that this Court grant such other and further relief to HBI as this Court may deem just and equitable and as the Court deems appropriate. REQUEST FOR JURY TRIAL In accordance with Rule 38 of the Federal Rules of Civil Procedure, HBI respectfully requests a jury trial on all issues triable to a jury in this action. This 15th day of November, 2013. /s/ John F. Morrow, Jr. John F. Morrow, Jr. (N.C. State Bar No. 23382) David R. Boaz (N.C. State Bar No. 44229) WOMBLE CARLYLE SANDRIDGE & RICE, LLP Attorneys for Hanesbrands Inc. One West Fourth Street Winston-Salem, NC 27101 Telephone: 336-721-3584 Facsimile: 336-733-8429 jmorrow@wcsr.com jmcfadden@wcsr.com dboaz@wcsr.com