Case 1:17-cv-00595-LPS-CJB Document 18 Filed 08/23/17 Page 1 of 50 PageID #: 98
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE
HANESBRANDS INC.,
Plaintiff,
C.A. No. 1:17-595-LPS-CJB v.
JURY TRIAL DEMANDED JACQUES MORET, INC.,
Defendant.
FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT AND ANSWER TO DEFENDANT’S AMENDED COUNTERCLAIMS
Plaintiff Hanesbrands Inc. (“Hanesbrands”) for its Complaint against Jacques Moret, Inc.
(“Jacques Moret”), and its answer to Defendant Jacques Moret’s Amended Counterclaims, states
as follows:
The Nature of the Action
1. This is an action for infringement of United States Patent Nos. 6,125,664;
6,685,534; 7,163,432; 6,790,122; and 7,169,011 (collectively, “the Asserted Patents”) under 35
U.S.C. § 271.
The Parties
2. Hanesbrands is a Maryland corporation, with a principal place of business at 1000
East Hanes Mill Road, Winston-Salem, North Carolina 27105.
3. On information and belief, Jacques Moret is a Delaware corporation, with a
principal place of business at 1411 Broadway, 8th Floor, New York, NY 10018. Service upon
Jacques Moret may be made by serving its registered agent for service of process, The
Corporation Trust Company, 1209 Orange Street, Wilmington, DE 19801. Case 1:17-cv-00595-LPS-CJB Document 18 Filed 08/23/17 Page 2 of 50 PageID #: 99
4. On information and belief, Jacques Moret is in the business of selling basic and
fashion apparel for men, women and children, and derives revenue from sales and distribution of
the products at issue in the District.
Jurisdiction and Venue
5. This action arises under the patent laws of the United States, Title 35 of the
United States Code. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1338(a).
6. This Court has personal jurisdiction over defendant Jacques Moret. On information and belief, Jacques Moret is incorporated in Delaware, regularly does or solicits business in this jurisdiction (either through retail stores or its interactive website), engages in other persistent courses of conduct in this jurisdiction, and/or derives substantial revenue from goods and services provided to persons or entities in this jurisdiction.
7. In addition, the Court has personal jurisdiction over Jacques Moret because it has established minimum contacts with the forum and the exercise of jurisdiction over Jacques Moret would not offend traditional notions of fair play and substantial justice. In accordance with established distribution channels for the Accused Products, Jacques Moret reasonably anticipated that the Accused Products would end up in this District and be sold herein.
8. Venue in this jurisdiction is proper under 28 U.S.C. § 1400(b) and the United
States Supreme Court’s decision in TC Heartland LLC v. Kraft Foods Group Brands LLC, 137
S. Ct. 1514 (May 22, 2017).
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Background
9. Hanesbrands is one of the world's leading providers of branded apparel products
such as T-shirts, bras, panties, men’s underwear, socks, hosiery, casualwear, shapewear and
active wear.
10. George Alexander Graham Browder, Jr. filed an application for a patent on his
invention for a bra formed from an integral circular blank, including a torso part with an inner
layer and an outer layer, seamlessly joined to a turned welt, and was granted U.S. Patent No.
6,125,664 (the ’664 Patent) on October 3, 2000, which was ultimately assigned to Hanesbrands.
11. John Mitchell and Sandra Ann Waitz filed an application for a patent on their
invention for a circular knit bra, including a stabilizing area knitted into the breast cups and
adjacent the bottom edges of the breast cups and a stabilizing area in the central gore between the
breast cups, and was granted U.S. Patent No. 6,685,534 (the ’534 Patent) on February 3, 2004,
which was ultimately assigned to Hanesbrands.
12. John Mitchell and Sandra Ann Waitz filed an application for a patent on their
invention for a circular knit bra, including a knitted stabilizing area adjacent to the bottom edge
of each breast cup and a stabilizing area in the central gore between the breast cups, and was
granted U.S. Patent No. 7,163,432 (the ’432 Patent) on January 16, 2007, which was ultimately
assigned to Hanesbrands.
13. John Mitchell and Sandra Ann Waitz filed an application for a patent on their
invention for a circular knit bra having different areas of stretchability, and was granted U.S.
Patent No. 6,790,122 (the ’122 Patent) on September 14, 2004, which was ultimately assigned to
Hanesbrands.
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14. John Mitchell and Sandra Ann Waitz filed an application for a patent on their
invention for a circular knit bra having different areas of stretchability, and was granted U.S.
Patent No. 7,169,011 (the ’011 Patent) on January 30, 2007, which was ultimately assigned to
Hanesbrands.
15. A Registered Identification Number (hereafter, "RN") is a number issued by the
Federal Trade Commission to U.S. businesses that manufacture, import, distribute, or sell
products covered by the Textile Fiber Products Identification Act, 15 U.S.C. § 70, et seq.
16. A business is required to label covered products to identify the business
responsible for marketing the products in the United States or the manufacturer. A business can
include its RN on product labels instead of the company name. The RN for a business may be
found on the Federal Trade Commission's RN Database.
17. The RN for Jacques Moret is RN 50369.
18. RN 50369 is exclusively associated with bra styles manufactured by or for
Jacques Moret.
19. On information and belief, RN 50369 is the only RN associated with bra styles
manufactured by or for Jacques Moret.
20. “RN 50369” is equivalent to “RN #50369” and equivalent to “RN# 50369” and
equivalent to “RN#50369” and equivalent to “RN50369”.
21. On information and belief, Jacques Moret has made in, had made in, sold in,
offered for sale in, imported into, and/or used in the United States bra styles associated with RN
50369.
22. The bra styles identified in this Complaint (hereafter, "the Accused Products") are
sold with a tag or label indicating RN 50369.
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23. On information and belief, Jacques Moret made the Accused Products.
24. On information and belief, Jacques Moret has sold the Accused Products.
25. On information and belief, Jacques Moret has offered to sell the Accused
Products.
26. On information and belief, employees of Jacques Moret have worn at least some
of the bras identified as Accused Products at the direction and control of Jacques Moret.
COUNT I
Infringement of U.S. Patent No. 6,125,664 Pursuant to 35 U.S.C. § 271
27. Hanesbrands repeats and realleges paragraphs 1-26 as if fully set forth herein.
28. A true and correct copy of the ’664 Patent is attached as Exhibit A.
29. Hanesbrands is the owner of the entire right, title and interest in the ’664 Patent,
including the right to exclude Jacques Moret and to enforce, sue and recover damages for past
and future infringement against Jacques Moret.
30. The ’664 Patent is valid, enforceable, and was duly issued on October 3, 2000, in
full compliance with Title 35 of the United States Code.
31. On information and belief, Jacques Moret currently sells Jockey® brand bras
under license from Jockey International, Inc.
32. On information and belief, Jacques Moret has made in, had made in, sold in,
offered for sale in, imported into, and/or used in the United States its Jockey® brand bra styles
JK-8791/333 and JK-8973.
33. On information and belief, Jacques Moret is continuing to make in, have made in,
sell in, offer for sale in, import into, and/or use in the United States its Jockey® brand bra styles
JK-8791/333 and JK-8973.
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34. On information and belief, Jacques Moret has been, and now is, directly
infringing the claims of the ’664 Patent in this District and elsewhere in the United States,
without the consent or authorization of Hanesbrands, by or through its making, having made,
sale, offer for sale, importing into, and/or use in the United States of the patented brassiere,
including at least its Jockey® brand bra styles JK-8791/333 and JK-8973, which are covered by
one or more claims of the ’664 Patent.
35. On information and belief, Jacques Moret has been, and now is, directly
infringing the claims of the ’664 Patent in this District and elsewhere in the United States,
without the consent or authorization of Hanesbrands, by or through its making, having made,
sale, offer for sale, importing into, and/or use in the United States of the patented brassiere,
including at least its Danskin® brand bra styles 17DB508801LEC02011 (Style 5088),
17DN444801LEC00115 (Style 4448), and 17DN484701SEC42812 (Style 4847), which are
covered by one or more claims of the ’664 Patent.
36. On information and belief, Jacques Moret has been, and now is, directly
infringing the claims of the ’664 Patent in this District and elsewhere in the United States,
without the consent or authorization of Hanesbrands, by or through its making, having made,
sale, offer for sale, importing into, and/or use in the United States of the patented brassiere,
including at least its Jockey® brand bra styles JK-2061 (921100), JK-2064 (932500), JK-2065,
JK-2066, JK-2067, JK-8506 (699700), JK-8791/333, and JK-8973 which are covered by one or
more claims of the ’664 Patent.
37. On information and belief, Jacques Moret has been, and now is, directly
infringing the claims of the ’664 Patent in this District and elsewhere in the United States,
without the consent or authorization of Hanesbrands, by or through its making, having made,
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sale, offer for sale, importing into, and/or use in the United States of the patented brassiere,
including at least its Moret Ultra® brand bra styles 116869B008BMO, 1169230011BMO,
1171080011BMO, 1172430011BMO, and 1173060011BMO, which are covered by one or more
claims of the ’664 Patent.
38. On information and belief, Jacques Moret has been, and now is, directly
infringing the claims of the ’664 Patent in this District and elsewhere in the United States,
without the consent or authorization of Hanesbrands, by or through its making, having made,
sale, offer for sale, importing into, and/or use in the United States of the patented brassiere,
including at least its Spalding® brand bra styles 1847300024B, 1847310024B, 1847330008BBC,
1847930024B, 1863310001SAZ, 1863330001LAZ, 1863340001LAZ, 1865790001MAZ,
186636B001SAZ, 1866370001MAZ, 186644B001LAZ, 186869B001MAZ, 1869230001MAZ,
1869240001MAZ, 1871080001MAZ, 1872430001MAZ, 1873070001MAZ, and B01530U966,
which are covered by one or more claims of the ’664 Patent.
39. For example, Jacques Moret directly infringes at least Claim 1 of the ’664 Patent.
40. Claim 1 of the ‘664 Patent recites a brassiere formed from an integral circular
blank comprising: a turned welt having a torso encircling shape; and a torso part having an outer
fabric and an inner fabric, said outer fabric and said inner fabric each having a torso encircling
shape and a lower edge that is seamlessly joined to said turned welt, said outer fabric being
formed with one or more types of yarn, using one or more knit stitches, said inner fabric having
one or more knit stitches, and being formed with a yarn selected for softness, and wicking of
moisture, wherein said outer fabric and said inner fabric form a double layer that provides
strength and comfort to the brassiere.
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41. As claimed in Claim 1 of the ’664 Patent, Jacques Moret’s Jockey® brand bra
style JK-8791/333 (pictured below) includes a brassiere, formed from an integral circular blank,
with a knit body having a turned welt forming a torso band having a torso encircling shape, and
an inner fabric layer and an outer fabric layer extending continuously from the turned welt to
form a body portion. The outer fabric layer and the inner fabric layer of bra style JK-8791/333
each have a torso encircling shape and a lower edge that is seamlessly joined to the turned welt.
The outer fabric layer and the inner fabric layer form a double layer.
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Seamless knit between welt and fabric
Turned welt at bottom edge
42. Jacques Moret’s Jockey® brand bra style JK-8791/333 is a brassiere formed from
an integral circular blank.
43. Jacques Moret’s Jockey® brand bra style JK-8791/333 is a brassiere having with
a knit body having a turned welt forming a torso band having a torso encircling shape.
44. Jacques Moret’s Jockey® brand bra style JK-8791/333 is a brassiere having an
inner fabric layer and an outer fabric layer extending continuously from the turned welt to form a
body portion.
45. The outer fabric layer and the inner fabric layer of Jacques Moret’s Jockey®
brand bra style JK-8791/333 each have a torso encircling shape.
46. The outer fabric layer and the inner fabric layer of Jacques Moret’s Jockey®
brand bra style JK-8791/333 each have a lower edge that is seamlessly joined to the turned welt.
47. Claim 2 of the ’664 Patent recites the brassiere according to claim 1, wherein said
outer fabric includes a nylon ground yarn.
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48. Claim 3 of the ’664 Patent recites the brassiere according to claim 2, wherein said
outer fabric further includes an elastomeric yarn.
49. The outer fabric layer of Jacques Moret’s Jockey® brand bra style JK-8791/333
(pictured below) also includes a nylon ground yarn and further includes an elastomeric yarn.
50. Claim 6 of the ’664 Patent recites the brassiere according to Claim 1, wherein said
one or more knit stitches of said outer fabric is selected from the group consisting of plain, tuck,
and float.
51. The outer fabric layer of Jacques Moret’s Jockey® brand bra style JK-8791/333
also includes one or more knit stitches including plain, tuck, or float knit stitches.
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52. Claim 10 of the ’664 Patent recites the brassiere according to Claim 1, wherein
said turned welt is formed, at least in part, with elastomeric yarn. Claim 12 of the ’664 Patent
recites the brassiere according to Claim 10, wherein said elastomeric yarn is spandex.
53. The turned welt of Jacques Moret’s Jockey® brand bra style JK-8791/333 is also
formed at least in part with elastomeric yarn, in particular, with spandex.
54. As claimed in Claim 1 of the ’664 Patent, Jacques Moret’s Jockey® brand bra
style JK-8973 includes a brassiere, formed from an integral circular blank, with a knit body
having a turned welt forming a torso band having a torso encircling shape, and an inner fabric
layer and an outer fabric layer extending continuously from the turned welt to form a body
portion. The outer fabric layer and the inner fabric layer of bra style JK-8973 each have a torso
encircling shape and a lower edge that is seamlessly joined to the turned welt. The outer fabric
layer and the inner fabric layer form a double layer.
55. Jacques Moret’s Jockey® brand bra style JK-8973 is a brassiere formed from an
integral circular blank.
56. Jacques Moret’s Jockey® brand bra style JK-8973 is a brassiere having with a
knit body having a turned welt forming a torso band having a torso encircling shape.
57. Jacques Moret’s Jockey® brand bra style JK-8973 is a brassiere having an inner
fabric layer and an outer fabric layer extending continuously from the turned welt to form a body
portion.
58. The outer fabric layer and the inner fabric layer of Jacques Moret’s Jockey®
brand bra style JK-8973 each have a torso encircling shape.
59. The outer fabric layer and the inner fabric layer of Jacques Moret’s Jockey®
brand bra style JK-8973 each have a lower edge that is seamlessly joined to the turned welt.
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60. The outer fabric layer of Jacques Moret’s Jockey® brand bra style JK-8973 also
includes a nylon ground yarn, and further includes an elastomeric yarn.
61. Jacques Moret has actual knowledge of the ’664 Patent.
62. Jacques Moret had actual knowledge of the ’664 Patent since before the filing of
Hanesbrands’ Original Complaint for infringement.
63. Jacques Moret has had actual knowledge of the ’664 Patent since at least its
receipt of Hanesbrands’ correspondence to Jockey International, Inc. asserting that the Jockey®
brand bra style JK-8791/333 is covered by one or more claims of the ’664 patent which, on
information and belief, occurred on or before March 28, 2017. Jacques Moret has nonetheless
continued infringing one or more claims of the ’664 Patent.
64. On information and belief, Jacques Moret acted with full knowledge of the ’664
Patent and without a reasonable basis for believing that it would not be liable for actively
inducing the infringement of the ’664 Patent. At minimum, Jacques Moret was and continues to
be willfully blind to the existence of the ’664 Patent and continues to make, sell, offer for sale,
import into the United States, use, and direct others to use its infringing bra styles in infringing
manners.
65. On information and belief, Jacques Moret takes active steps to induce
infringement by others, including one or more of distributors, retailers, customers, and wearers
of the bras, of one or more claims of the ’664 Patent in violation of 35 U.S.C. § 271(b), including
customers that purchase Jacques Moret’s Jockey brand bras.
66. Such active steps by Jacques Moret include, but are not limited to encouraging,
advertising (including by internet websites), promoting, and instructing others, including
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customers and/or wearers, to use and/or how to use its bras. For example, Jacques Moret
advertises and encourages the use of its Jockey® brand bra styles: https://www.moret.com/jockey.
67. On information and belief, Jacques Moret knows or should know that such
activities induce others to directly infringe one or more claims of the ’664 Patent by using its
bras. For example, Jacques Moret knew or was willfully blind that its actions induced others,
including one or more of distributors, retailers, customers, and/or wearers of the bras, to directly
infringe the ’664 Patent as of at least the filing of Hanesbrands’ Original Complaint.
68. By way of at least the filing of Hanesbrands’ Original Complaint, Jacques Moret
has known of the ’664 Patent and knows, or is willfully blind to the fact, that its acts induce the
direct infringement of one or more claims of the ’664 Patent by others, including one or more of
distributors, retailers, customers, and/or wearers of the bras.
69. Jacques Moret has engaged in egregious infringing behavior with knowledge of
the ’664 Patent, which has been duly issued by the United States Patent and Trademark Office,
and is presumed valid. On information and belief, Jacques Moret has known or should have
known that its actions constituted and continue to constitute infringement of the ’664 Patent and
that the ’664 Patent is valid at least as of the date Jacques Moret was served with or otherwise
notified of Hanesbrands’ Original Complaint. Jacques Moret could not reasonably, subjectively
believe that its actions do not constitute infringement of the ’664 Patent, nor could it reasonably,
subjectively believe that the ’664 Patent is invalid. Despite that knowledge and subjective belief,
and the objectively high likelihood that its actions constitute infringement, Jacques Moret has
continued its infringing activities. As such, Jacques Moret willfully infringes the ’664 Patent.
70. By its actions, Jacques Moret has injured Hanesbrands and is liable to
Hanesbrands for infringement of the ’664 Patent pursuant to 35 U.S.C. § 271.
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71. By its actions, Jacques Moret’s infringement of the ’664 Patent has irreparably
injured Hanesbrands. Unless such infringing acts are enjoined by this Court, Hanesbrands will
continue to suffer additional irreparable injury.
72. By its actions, Jacques Moret’s infringement of the ’664 Patent has damaged, and
continues to damage, Hanesbrands in an amount yet to be determined, of at least a reasonable
royalty and/or lost profits that Hanesbrands would have made but for Jacques Moret’s infringing
acts.
COUNT II
Infringement of U.S. Patent No. 6,685,534 Pursuant to 35 U.S.C. § 271
73. Hanesbrands repeats and realleges paragraphs 1-26 as if fully set forth herein.
74. A true and correct copy of the ’534 Patent is attached as Exhibit B.
75. Hanesbrands is the owner of the entire right, title and interest in the ’534 Patent,
including the right to exclude Jacques Moret and to enforce, sue and recover damages for past
and future infringement against Jacques Moret.
76. The ’534 Patent is valid, enforceable, and was duly issued on February 3, 2004, in
full compliance with Title 35 of the United States Code.
77. On information and belief, Jacques Moret currently sells Spalding® brand bras
under license from Spalding, or an affiliate of Spalding.
78. On information and belief, Jacques Moret has made in, had made in, sold in,
offered for sale in, imported into, and/or used in the United States its Spalding® brand bra style
186869B001MAZ.
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79. On information and belief, Jacques Moret is continuing to make in, have made in,
sell in, offer for sale in, import into, and/or use in the United States its Spalding® brand bra style
186869B001MAZ.
80. On information and belief, Jacques Moret has been, and now is, directly
infringing the claims of the ’534 Patent in this District and elsewhere in the United States,
without the consent or authorization of Hanesbrands, by or through its making, having made,
sale, offer for sale, importing into, and/or use in the United States of the patented brassiere,
including at least its Spalding® brand bra style 186869B001MAZ, which is covered by one or
more claims of the ’534 Patent.
81. On information and belief, Jacques Moret has been, and now is, directly
infringing the claims of the ’534 Patent in this District and elsewhere in the United States,
without the consent or authorization of Hanesbrands, by or through its making, having made,
sale, offer for sale, importing into, and/or use in the United States of the patented brassiere,
including at least its Danskin® brand bra styles 17DB508801LEC02011 (Style 5088),
17DN444801LEC00115 (Style 4448), and 17DN484701SEC42812 (Style 4847), which are
covered by one or more claims of the ’534 Patent.
82. On information and belief, Jacques Moret has been, and now is, directly
infringing the claims of the ’534 Patent in this District and elsewhere in the United States,
without the consent or authorization of Hanesbrands, by or through its making, having made,
sale, offer for sale, importing into, and/or use in the United States of the patented brassiere,
including at least its Jockey® brand bra styles JK-2061 (921100), JK-2064 (932500), JK-2065,
JK-2066, JK-2067, JK-8105, JK-8506 (699700), and JK-8791/333, which are covered by one or
more claims of the ’534 Patent.
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83. On information and belief, Jacques Moret has been, and now is, directly
infringing the claims of the ’534 Patent in this District and elsewhere in the United States,
without the consent or authorization of Hanesbrands, by or through its making, having made,
sale, offer for sale, importing into, and/or use in the United States of the patented brassiere,
including at least its Moret Ultra® brand bra styles 116869B008BMO, 1169230011BMO,
1171080011BMO, 1172430011BMO, 1172610011BMO, 1173060011BMO, which are covered
by one or more claims of the ’534 Patent.
84. On information and belief, Jacques Moret has been, and now is, directly
infringing the claims of the ’534 Patent in this District and elsewhere in the United States,
without the consent or authorization of Hanesbrands, by or through its making, having made,
sale, offer for sale, importing into, and/or use in the United States of the patented brassiere,
including at least its Spalding® brand bra styles 186869B001MAZ, 1847300024B,
1847310024B, 1847330008BBC, 1847930024B, 1847950024B, 1863310001SAZ,
1863340001LAZ, 1865790001MAZ, 186636B001SAZ, 1866370001MAZ, 186644B001LAZ,
1869230001MAZ, 1869240001MAZ, 1871080001MAZ, 1872430001MAZ, 1872610002MAZ,
1873070001MAZ, B01530U966, which are covered by one or more claims of the ’534 Patent.
85. For example, Jacques Moret directly infringes at least Claim 1 of the ’534 Patent.
86. Claim 1 of the ’534 Patent recites a circular knit bra comprising: a pair of breast
cups, each of said pair of breast cups having a bottom edge, each of said pair of breast cups
having a stabilizing are knitted into each of said pair of breast cups and adjacent to each of said
bottom edges; a central gore being disposed between said pair of breast cups, wherein said
central gore has a stabilizing area therein; and a pair of side panels, each of said pair of side
panels being adjacent to a different one of said pair of breast cups.
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87. As claimed in Claim 1 of the ’534 Patent, Jacques Moret’s Spalding® brand bra
style 186869B001MAZ (pictured below) includes a circular knit bra with a pair of breast cups,
each of the breast cups having a bottom edge and a stabilizing area knitted into each of the breast
cups adjacent to each of the bottom edges, and a central gore with a stabilizing area. Bra style
186869B001MAZ also has a pair of side panels, each side panel being adjacent a different breast
cup.
Front view
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Inside‐out Front view
Magnified Inside‐out Front view Stabilizing area at central gore Stabilizing area adjacent bottom edge of breast cups
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88. Jacques Moret’s Spalding® brand bra style 186869B001MAZ is a circular knit
bra.
89. Jacques Moret’s Spalding® brand bra style 186869B001MAZ is a bra having a
pair of breast cups, each of the breast cups having a bottom edge, and each of the breast cups
having a stabilizing area knitted into each of the pair of breast cups and adjacent to each of the
bottom edges.
90. Jacques Moret’s Spalding® brand bra style 186869B001MAZ is a bra having a
central gore disposed between the pair of breast cups, where the central gore has a stabilizing
area therein.
91. Jacques Moret’s Spalding® brand bra style 186869B001MAZ is a bra having a
pair of side panels, where each of the side panels are adjacent to a different one of the breast
cups.
92. Jacques Moret has actual knowledge of the ’534 Patent.
93. On information and belief, Jacques Moret had actual knowledge of the ’534
Patent since before Jacques Moret’s receipt of correspondence from Hanesbrands’ counsel to
Jacques Moret’s counsel emailed August 17, 2017.
94. On information and belief, Jacques Moret acted with full knowledge of the ’534
Patent and without a reasonable basis for believing that it would not be liable for actively
inducing the infringement of the ’534 Patent. At minimum, Jacques Moret was and continues to
be willfully blind to the existence of the ’534 Patent and continues to make, sell, offer for sale,
import into the United States, use, and direct others to use its infringing bra styles in infringing
manners. On information and belief, multiple Hanesbrands bra styles were marked with the ’534
patent over multiple years.
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95. On information and belief, Jacques Moret takes active steps to induce
infringement by others, including one or more of distributors, retailers, customers, and wearers
of the bras, of one or more claims of the ’534 Patent in violation of 35 U.S.C. § 271(b), including
customers that purchase Jacques Moret’s Spalding brand bra style 186869B001MAZ.
96. Such active steps by Jacques Moret include, but are not limited to encouraging,
advertising (including by internet websites), promoting, and instructing others, including
customers and/or wearers, to use and/or how to use its bras. For example, Jacques Moret
advertises and encourages the use of its Spalding® brand bra styles:
https://www.moret.com/spalding.
97. On information and belief, Jacques Moret knows or should know that such
activities induce others to directly infringe one or more claims of the ’534 Patent by using its
bras. For example, Jacques Moret knew or was willfully blind that its actions induced others,
including one or more of distributors, retailers, customers, and/or wearers of the bras, to directly
infringe the ’534 Patent by using, selling, and/or offering for sale one or more of the Accused
Products as of at least its receipt of correspondence from Hanesbrands’ counsel to Jacques
Moret’s counsel emailed August 17, 2017.
98. By way of at least Jacques Moret’s receipt of correspondence from Hanesbrands’
counsel to Jacques Moret’s counsel emailed August 17, 2017, Jacques Moret has known of the
’534 Patent and knows, or is willfully blind to the fact, that its acts induce the direct infringement
of one or more claims of the ’534 Patent by others, including one or more of distributors,
retailers, customers, and/or wearers of the bras.
99. Jacques Moret has engaged in egregious infringing behavior with knowledge of
the ’534 Patent, which has been duly issued by the United States Patent and Trademark Office,
20 Case 1:17-cv-00595-LPS-CJB Document 18 Filed 08/23/17 Page 21 of 50 PageID #: 118
and is presumed valid. On information and belief, Jacques Moret has known or should have
known that its actions constituted and continue to constitute infringement of the ’534 Patent and
that the ’534 Patent is valid at least as of Jacques Moret’s receipt of correspondence from
Hanesbrands’ counsel to Jacques Moret’s counsel emailed August 17, 2017. Jacques Moret
could not reasonably, subjectively believe that its actions do not constitute infringement of the
’534 Patent, nor could it reasonably, subjectively believe that the ’534 Patent is invalid. Despite
that knowledge and subjective belief, and the objectively high likelihood that its actions
constitute infringement, Jacques Moret has continued its infringing activities. As such, Jacques
Moret willfully infringes the ’534 Patent.
100. By its actions, Jacques Moret has injured Hanesbrands and is liable to
Hanesbrands for infringement of the ’534 Patent pursuant to 35 U.S.C. § 271.
101. By its actions, Jacques Moret’s infringement of the ’534 Patent has irreparably
injured Hanesbrands. Unless such infringing acts are enjoined by this Court, Hanesbrands will
continue to suffer additional irreparable injury.
102. By its actions, Jacques Moret’s infringement of the ’534 Patent has damaged, and
continues to damage, Hanesbrands in an amount yet to be determined, of at least a reasonable
royalty and/or lost profits that Hanesbrands would have made but for Jacques Moret’s infringing
acts.
COUNT III
Infringement of U.S. Patent No. 7,163,432 Pursuant to 35 U.S.C. § 271
103. Hanesbrands repeats and realleges paragraphs 1-26 as if fully set forth herein.
104. A true and correct copy of the ’432 Patent is attached as Exhibit C.
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105. Hanesbrands is the owner of the entire right, title and interest in the ’432 Patent,
including the right to exclude Jacques Moret and to enforce, sue and recover damages for past
and future infringement against Jacques Moret.
106. The ’432 Patent is valid, enforceable, and was duly issued on February 3, 2004, in
full compliance with Title 35 of the United States Code.
107. On information and belief, Jacques Moret currently sells Spalding® brand bras
under license from Spalding, or an affiliate of Spalding.
108. On information and belief, Jacques Moret has made in, had made in, sold in,
offered for sale in, imported into, and/or used in the United States its Spalding® brand bra style
186869B001MAZ.
109. On information and belief, Jacques Moret is continuing to make in, have made in,
sell in, offer for sale in, import into, and/or use in the United States its Spalding® brand bra style
186869B001MAZ.
110. On information and belief, Jacques Moret has been, and now is, directly
infringing the claims of the ’432 Patent in this District and elsewhere in the United States,
without the consent or authorization of Hanesbrands, by or through its making, having made,
sale, offer for sale, importing into, and/or use in the United States of the patented brassiere,
including at least its Spalding® brand bra style 186869B001MAZ, which is covered by one or
more claims of the ’432 Patent.
111. On information and belief, Jacques Moret has been, and now is, directly
infringing the claims of the ’432 Patent in this District and elsewhere in the United States,
without the consent or authorization of Hanesbrands, by or through its making, having made,
sale, offer for sale, importing into, and/or use in the United States of the patented brassiere,
22 Case 1:17-cv-00595-LPS-CJB Document 18 Filed 08/23/17 Page 23 of 50 PageID #: 120
including at least its Danskin® brand bra styles 17DB508801LEC02011 (Style 5088),
17DN444801LEC00115 (Style 4448), and 17DN484701SEC42812 (Style 4847), which are
covered by one or more claims of the ’432 Patent.
112. On information and belief, Jacques Moret has been, and now is, directly
infringing the claims of the ’432 Patent in this District and elsewhere in the United States,
without the consent or authorization of Hanesbrands, by or through its making, having made,
sale, offer for sale, importing into, and/or use in the United States of the patented brassiere,
including at least its Jockey® brand bra styles JK-2061 (921100), JK-2064 (932500), JK-2065,
JK-2066, JK-2067, JK-8105, JK-8506 (699700), and JK-8791/333, which are covered by one or
more claims of the ’432 Patent.
113. On information and belief, Jacques Moret has been, and now is, directly
infringing the claims of the ’432 Patent in this District and elsewhere in the United States,
without the consent or authorization of Hanesbrands, by or through its making, having made,
sale, offer for sale, importing into, and/or use in the United States of the patented brassiere,
including at least its Moret Ultra® brand bra styles 116869B008BMO, 1169230011BMO,
1171080011BMO, 1172430011BMO, 1172610011BMO, 1173060011BMO, which are covered
by one or more claims of the ’432 Patent.
114. On information and belief, Jacques Moret has been, and now is, directly
infringing the claims of the ’432 Patent in this District and elsewhere in the United States,
without the consent or authorization of Hanesbrands, by or through its making, having made,
sale, offer for sale, importing into, and/or use in the United States of the patented brassiere,
including at least its Spalding® brand bra styles 186869B001MAZ, 1847300024B,
1847310024B, 1847330008BBC, 1847930024B, 1847950024B, 1863310001SAZ,
23 Case 1:17-cv-00595-LPS-CJB Document 18 Filed 08/23/17 Page 24 of 50 PageID #: 121
1863340001LAZ, 1865790001MAZ, 186636B001SAZ, 1866370001MAZ, 186644B001LAZ,
1869230001MAZ, 1869240001MAZ, 1871080001MAZ, 1872430001MAZ, 1872610002MAZ,
1873070001MAZ, B01530U966, which are covered by one or more claims of the ’432 Patent.
115. For example, Jacques Moret directly infringes at least Claim 1 of the ’432 Patent.
116. Claim 1 of the ’432 Patent recites a circular knit bra comprising: a pair of breast
cups, each of said pair of breast cups having a bottom edge and a knitted stabilizing area adjacent
to each said bottom edge; a central gore being disposed between said pair of breast cups, wherein
said central gore has a stabilizing area therein, said central gore being circularly knit; an
anchoring chest band; and a pair of side panels, each of said pair of side panels being adjacent to
a different one of said pair of breast cups, each of said pair of side panels being circularly knit,
wherein each of said pair of breast cups is circularly knit and has a bottom edge and a stabilizing
area adjacent each of said bottom edges being circularly knit.
117. As claimed in Claim 1 of the ’432 Patent, Jacques Moret’s Spalding® brand bra
style 186869B001MAZ (pictured below) includes a circular knit bra with a pair of breast cups,
each of the breast cups having a bottom edge and a knitted stabilizing area adjacent to each of the
bottom edges, and a central gore with a stabilizing area. Bra style 186869B001MAZ also has an
anchoring chest band and a pair of side panels, each side panel being adjacent a different breast
cup.
24 Case 1:17-cv-00595-LPS-CJB Document 18 Filed 08/23/17 Page 25 of 50 PageID #: 122
Front view
Inside‐out Front view
25 Case 1:17-cv-00595-LPS-CJB Document 18 Filed 08/23/17 Page 26 of 50 PageID #: 123
Magnified Inside‐out Front view Stabilizing area at central gore Stabilizing area adjacent bottom edge of breast cups
118. Jacques Moret’s Spalding® brand bra style 186869B001MAZ is a circular knit
bra.
119. Jacques Moret’s Spalding® brand bra style 186869B001MAZ is a bra having a
pair of breast cups, each of the breast cups having a bottom edge and a knitted stabilizing area
adjacent to each of the bottom edges.
120. Jacques Moret’s Spalding® brand bra style 186869B001MAZ is a bra having a
central gore disposed between the pair of breast cups, where the central gore has a stabilizing
area therein.
121. Jacques Moret’s Spalding® brand bra style 186869B001MAZ is a bra having an
anchoring chest band.
26 Case 1:17-cv-00595-LPS-CJB Document 18 Filed 08/23/17 Page 27 of 50 PageID #: 124
122. Jacques Moret’s Spalding® brand bra style 186869B001MAZ is a bra having a
pair of side panels, where each of the side panels are adjacent to a different one of the breast
cups, and where the side panels are circularly knit.
123. Jacques Moret has actual knowledge of the ’432 Patent.
124. On information and belief, Jacques Moret had actual knowledge of the ’432
Patent since before Jacques Moret’s receipt of correspondence from Hanesbrands’ counsel to
Jacques Moret’s counsel emailed August 17, 2017.
125. On information and belief, Jacques Moret acted with full knowledge of the ’432
Patent and without a reasonable basis for believing that it would not be liable for actively
inducing the infringement of the ’432 Patent. At minimum, Jacques Moret was and continues to
be willfully blind to the existence of the ’432 Patent and continues to make, sell, offer for sale,
import into the United States, use, and direct others to use its infringing bra styles in infringing
manners.
126. On information and belief, Jacques Moret takes active steps to induce
infringement by others, including one or more of distributors, retailers, customers, and wearers
of the bras, of one or more claims of the ’432 Patent in violation of 35 U.S.C. § 271(b), including
customers that purchase Jacques Moret’s Spalding brand bra style 186869B001MAZ.
127. Such active steps by Jacques Moret include, but are not limited to encouraging,
advertising (including by internet websites), promoting, and instructing others, including
customers and/or wearers, to use and/or how to use its bras. For example, Jacques Moret
advertises and encourages the use of its Spalding® brand bra styles:
https://www.moret.com/spalding.
27 Case 1:17-cv-00595-LPS-CJB Document 18 Filed 08/23/17 Page 28 of 50 PageID #: 125
128. On information and belief, Jacques Moret knows or should know that such
activities induce others to directly infringe one or more claims of the ’432 Patent by selling,
offering for sale, and/or using its bras. For example, Jacques Moret knew or was willfully blind
that its actions induced others, including one or more of distributors, retailers, customers, and/or
wearers of the bras, to directly infringe the ’432 Patent by using, selling, and/or offering for sale
one or more of the Accused Products as of at least its receipt of correspondence from
Hanesbrands’ counsel to Jacques Moret’s counsel emailed August 17, 2017.
129. By way of at least Jacques Moret’s receipt of correspondence from Hanesbrands’
counsel to Jacques Moret’s counsel emailed August 17, 2017, Jacques Moret has known of the
’432 Patent and knows, or is willfully blind to the fact, that its acts induce the direct infringement
of one or more claims of the ’432 Patent by others, including one or more of distributors,
retailers, customers, and/or wearers of the bras.
130. Jacques Moret has engaged in egregious infringing behavior with knowledge of
the ’432 Patent, which has been duly issued by the United States Patent and Trademark Office,
and is presumed valid. On information and belief, Jacques Moret has known or should have
known that its actions constituted and continue to constitute infringement of the ’432 Patent and
that the ’432 Patent is valid at least as of Jacques Moret’s receipt of correspondence from
Hanesbrands’ counsel to Jacques Moret’s counsel emailed August 17, 2017. Jacques Moret
could not reasonably, subjectively believe that its actions do not constitute infringement of the
’432 Patent, nor could it reasonably, subjectively believe that the ’432 Patent is invalid. Despite
that knowledge and subjective belief, and the objectively high likelihood that its actions
constitute infringement, Jacques Moret has continued its infringing activities. As such, Jacques
Moret willfully infringes the ’432 Patent.
28 Case 1:17-cv-00595-LPS-CJB Document 18 Filed 08/23/17 Page 29 of 50 PageID #: 126
131. By its actions, Jacques Moret has injured Hanesbrands and is liable to
Hanesbrands for infringement of the ’432 Patent pursuant to 35 U.S.C. § 271.
132. By its actions, Jacques Moret’s infringement of the ’432 Patent has irreparably
injured Hanesbrands. Unless such infringing acts are enjoined by this Court, Hanesbrands will
continue to suffer additional irreparable injury.
133. By its actions, Jacques Moret’s infringement of the ’432 Patent has damaged, and
continues to damage, Hanesbrands in an amount yet to be determined, of at least a reasonable
royalty and/or lost profits that Hanesbrands would have made but for Jacques Moret’s infringing
acts.
COUNT IV
Infringement of U.S. Patent No. 6,790,122 Pursuant to 35 U.S.C. § 271
134. Hanesbrands repeats and realleges paragraphs 1-26 as if fully set forth herein.
135. A true and correct copy of the ’122 Patent is attached as Exhibit D.
136. Hanesbrands is the owner of the entire right, title and interest in the ’122 Patent,
including the right to exclude Jacques Moret and to enforce, sue and recover damages for past
and future infringement against Jacques Moret.
137. The ’122 Patent is valid, enforceable, and was duly issued on September 14,
2004, in full compliance with Title 35 of the United States Code.
138. On information and belief, Jacques Moret currently sells Moret Ultra® brand bras.
139. On information and belief, Jacques Moret has made in, had made in, sold in,
offered for sale in, imported into, and/or used in the United States its Moret Ultra® brand bra
style 116869B008BMO.
29 Case 1:17-cv-00595-LPS-CJB Document 18 Filed 08/23/17 Page 30 of 50 PageID #: 127
140. On information and belief, Jacques Moret is continuing to make in, have made in,
sell in, offer for sale in, import into, and/or use in the United States its Moret Ultra® brand bra
style 116869B008BMO.
141. On information and belief, Jacques Moret has been, and now is, directly
infringing the claims of the ’122 Patent in this District and elsewhere in the United States,
without the consent or authorization of Hanesbrands, by or through its making, having made,
sale, offer for sale, importing into, and/or use in the United States of the patented brassiere,
including at least its Moret Ultra® brand bra style 116869B008BMO, which is covered by one or
more claims of the ’122 Patent.
142. On information and belief, Jacques Moret has been, and now is, directly
infringing the claims of the ’122 Patent in this District and elsewhere in the United States,
without the consent or authorization of Hanesbrands, by or through its making, having made,
sale, offer for sale, importing into, and/or use in the United States of the patented brassiere,
including at least its Danskin® brand bra style 17DN444801LEC00115 (Style 4448), which is
covered by one or more claims of the ’122 Patent.
143. On information and belief, Jacques Moret has been, and now is, directly
infringing the claims of the ’122 Patent in this District and elsewhere in the United States,
without the consent or authorization of Hanesbrands, by or through its making, having made,
sale, offer for sale, importing into, and/or use in the United States of the patented brassiere,
including at least its Jockey® brand bra styles JK-2064 (932500), JK-2065, JK-2066, JK-2067,
JK-8105, JK-8506 (699700), and JK-8791/333, which are covered by one or more claims of the
’122 Patent.
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144. On information and belief, Jacques Moret has been, and now is, directly
infringing the claims of the ’122 Patent in this District and elsewhere in the United States,
without the consent or authorization of Hanesbrands, by or through its making, having made,
sale, offer for sale, importing into, and/or use in the United States of the patented brassiere,
including at least its Moret Ultra® brand bra styles 116869B008BMO, 1171080011BMO,
1172610011BMO, and 1173060011BMO, which are covered by one or more claims of the ’122
Patent.
145. On information and belief, Jacques Moret has been, and now is, directly
infringing the claims of the ’122 Patent in this District and elsewhere in the United States,
without the consent or authorization of Hanesbrands, by or through its making, having made,
sale, offer for sale, importing into, and/or use in the United States of the patented brassiere,
including at least its Spalding® brand bra styles 1847300024B, 1847330008BBC, 1847930024B,
1847950024B, 1863310001SAZ, 1863340001LAZ, 1865790001MAZ, 186636B001SAZ,
1866370001MAZ, 186644B001LAZ, 186869B001MAZ, 1869240001MAZ, 1871080001MAZ,
1872610002MAZ, 1873070001MAZ, and B01530U966, which are covered by one or more
claims of the ’122 Patent.
146. For example, Jacques Moret directly infringes at least Claim 1 of the ’122 Patent.
147. Claim 1 of the ’122 Patent recites a circularly knit brassiere comprising: a body
portion having a center region, said center region having a pair of breast cups, a pair of side
panels, and an area between said pair of breast cups, wherein each of said pair of breast cups is
positioned between the area and a different one of the pair of side panels, wherein said area has a
baseline of stretchability, each of said breast cups has a first degree of stretchability, and each of
said pair of side panels has a second degree of stretchability.
31 Case 1:17-cv-00595-LPS-CJB Document 18 Filed 08/23/17 Page 32 of 50 PageID #: 129
148. As claimed in Claim 1 of the ’122 Patent, Jacques Moret’s Moret Ultra® brand bra
style 116869B008BMO (pictured below) includes an area between a pair of breast cups, the area
having a baseline of stretchability, the breast cups having a first degree of stretchability, and side
panels having a second degree of stretchability.
Front view
32 Case 1:17-cv-00595-LPS-CJB Document 18 Filed 08/23/17 Page 33 of 50 PageID #: 130
Inside‐out Front view
Breast cup with Area between breast cups Magnified first degree of with a baseline of Inside‐out stretchability stretchability Front view
33 Case 1:17-cv-00595-LPS-CJB Document 18 Filed 08/23/17 Page 34 of 50 PageID #: 131
Magnified Inside‐out Side view Breast cup with first degree of stretchability
Side panel with second degree of stretchability
149. Jacques Moret’s Moret Ultra® brand bra style 116869B008BMO is a circular knit
brassiere.
150. Jacques Moret’s Moret Ultra® brand bra style 116869B008BMO is a brassiere
having a body portion that has a center region, the center region having a pair of breast cups, a
pair of side panels, and an area between the pair of breast cups.
151. Jacques Moret’s Moret Ultra® brand bra style 116869B008BMO is a brassiere
having breast cups, where each breast cup is positioned between the area between the breast cups
and a different one of the pair of side panels.
152. Jacques Moret’s Moret Ultra® brand bra style 116869B008BMO is a brassiere
where the area between the pair of breast cups has a baseline of stretchability, each of the breast
34 Case 1:17-cv-00595-LPS-CJB Document 18 Filed 08/23/17 Page 35 of 50 PageID #: 132
cups have a first degree of stretchability, and each of the side panels has a second degree of
stretchability.
153. Jacques Moret has actual knowledge of the ’122 Patent.
154. Jacques Moret had actual knowledge of the ’122 Patent since before Jacques
Moret’s receipt of correspondence from Hanesbrands’ counsel to Jacques Moret’s counsel
emailed August 17, 2017.
155. On information and belief, Jacques Moret acted with full knowledge of the ’122
Patent and without a reasonable basis for believing that it would not be liable for actively
inducing the infringement of the ’122 Patent. At minimum, Jacques Moret was and continues to
be willfully blind to the existence of the ’122 Patent and continues to make, sell, offer for sale,
import into the United States, use, and direct others to use its infringing bra styles in infringing
manners.
156. On information and belief, Jacques Moret takes active steps to induce
infringement by others, including one or more of distributors, retailers, customers, and wearers
of the bras, of one or more claims of the ’122 Patent in violation of 35 U.S.C. § 271(b), including
customers that purchase Jacques Moret’s Moret Ultra bra style 116869B008BMO.
157. Such active steps by Jacques Moret include, but are not limited to encouraging,
advertising (including by internet websites), promoting, and instructing others, including
customers and/or wearers, to use and/or how to use its bras. For example, Jacques Moret
advertises and encourages the use of its Moret Ultra® brand bra styles:
https://www.moret.com/moret-ultra.
158. On information and belief, Jacques Moret knows or should know that such
activities induce others to directly infringe one or more claims of the ’122 Patent by selling,
35 Case 1:17-cv-00595-LPS-CJB Document 18 Filed 08/23/17 Page 36 of 50 PageID #: 133
offering for sale and/or using its bras. For example, Jacques Moret knew of was willfully blind
that its actions induced others, including one or more of distributors, retailers, customers, and/or
wearers of the bras, to directly infringe the ’122 Patent by using, selling, and/or offering for sale
one or more of the Accused Products as of at least its receipt of correspondence from
Hanesbrands’ counsel to Jacques Moret’s counsel emailed August 17, 2017.
159. By way of at least Jacques Moret’s receipt of correspondence from Hanesbrands’
counsel to Jacques Moret’s counsel emailed August 17, 2017, Jacques Moret has known of the
’122 Patent and knows, or is willfully blind to the fact, that its acts induce the direct infringement
of one or more claims of the ’122 Patent by others, including one or more of distributors,
retailers, customers, and/or wearers of the bras.
160. Jacques Moret has engaged in egregious infringing behavior with knowledge of
the ’122 Patent, which has been duly issued by the United States Patent and Trademark Office,
and is presumed valid. On information and belief, Jacques Moret has known or should have
known that its actions constituted and continue to constitute infringement of the ’122 Patent and
that the ’122 Patent is valid at least as of Jacques Moret’s receipt of correspondence from
Hanesbrands’ counsel to Jacques Moret’s counsel emailed August 17, 2017. Jacques Moret
could not reasonably, subjectively believe that its actions do not constitute infringement of the
’122 Patent, nor could it reasonably, subjectively believe that the ’122 Patent is invalid. Despite
that knowledge and subjective belief, and the objectively high likelihood that its actions
constitute infringement, Jacques Moret has continued its infringing activities. As such, Jacques
Moret willfully infringes the ’122 Patent.
161. By its actions, Jacques Moret has injured Hanesbrands and is liable to
Hanesbrands for infringement of the ’122 Patent pursuant to 35 U.S.C. § 271.
36 Case 1:17-cv-00595-LPS-CJB Document 18 Filed 08/23/17 Page 37 of 50 PageID #: 134
162. By its actions, Jacques Moret’s infringement of the ’122 Patent has irreparably
injured Hanesbrands. Unless such infringing acts are enjoined by this Court, Hanesbrands will
continue to suffer additional irreparable injury.
163. By its actions, Jacques Moret’s infringement of the ’122 Patent has damaged, and
continues to damage, Hanesbrands in an amount yet to be determined, of at least a reasonable
royalty and/or lost profits that Hanesbrands would have made but for Jacques Moret’s infringing
acts.
COUNT V
Infringement of U.S. Patent No. 7,169,011 Pursuant to 35 U.S.C. § 271
164. Hanesbrands repeats and realleges paragraphs 1-26 as if fully set forth herein.
165. A true and correct copy of the ’011 Patent is attached as Exhibit E.
166. Hanesbrands is the owner of the entire right, title and interest in the ’011 Patent,
including the right to exclude Jacques Moret and to enforce, sue and recover damages for past
and future infringement against Jacques Moret.
167. The ’011 Patent is valid, enforceable, and was duly issued on January 30, 2007, in
full compliance with Title 35 of the United States Code.
168. On information and belief, Jacques Moret currently sells Moret Ultra® brand bras.
169. On information and belief, Jacques Moret has made in, had made in, sold in,
offered for sale in, imported into, and/or used in the United States its Moret Ultra® brand bra
style 116869B008BMO.
170. On information and belief, Jacques Moret is continuing to make in, have made in,
sell in, offer for sale in, import into, and/or use in the United States its Moret Ultra® brand bra
style 116869B008BMO.
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171. On information and belief, Jacques Moret has been, and now is, directly
infringing the claims of the ’011 Patent in this District and elsewhere in the United States,
without the consent or authorization of Hanesbrands, by or through its making, having made,
sale, offer for sale, importing into, and/or use in the United States of the patented brassiere,
including at least its Moret Ultra® brand bra style 116869B008BMO, which is covered by one or
more claims of the ’011 Patent.
172. On information and belief, Jacques Moret has been, and now is, directly
infringing the claims of the ’011 Patent in this District and elsewhere in the United States,
without the consent or authorization of Hanesbrands, by or through its making, having made,
sale, offer for sale, importing into, and/or use in the United States of the patented brassiere,
including at least its Danskin® brand bra style 17DN444801LEC00115 (Style 4448), which is
covered by one or more claims of the ’011 Patent.
173. On information and belief, Jacques Moret has been, and now is, directly
infringing the claims of the ’011 Patent in this District and elsewhere in the United States,
without the consent or authorization of Hanesbrands, by or through its making, having made,
sale, offer for sale, importing into, and/or use in the United States of the patented brassiere,
including at least its Jockey® brand bra styles JK-2064 (932500), JK-2065, JK-2066, JK-2067,
JK-8105, JK-8506 (699700), and JK-8791/333, which are covered by one or more claims of the
’011 Patent.
174. On information and belief, Jacques Moret has been, and now is, directly
infringing the claims of the ’011 Patent in this District and elsewhere in the United States,
without the consent or authorization of Hanesbrands, by or through its making, having made,
sale, offer for sale, importing into, and/or use in the United States of the patented brassiere,
38 Case 1:17-cv-00595-LPS-CJB Document 18 Filed 08/23/17 Page 39 of 50 PageID #: 136
including at least its Moret Ultra® brand bra styles 116869B008BMO, 1171080011BMO,
1172610011BMO, and 1173060011BMO, which are covered by one or more claims of the ’011
Patent.
175. On information and belief, Jacques Moret has been, and now is, directly
infringing the claims of the ’011 Patent in this District and elsewhere in the United States,
without the consent or authorization of Hanesbrands, by or through its making, having made,
sale, offer for sale, importing into, and/or use in the United States of the patented brassiere,
including at least its Spalding® brand bra styles 1847300024B, 1847330008BBC, 1847930024B,
1847950024B, 1863310001SAZ, 1863340001LAZ, 1865790001MAZ, 186636B001SAZ,
1866370001MAZ, 186644B001LAZ, 186869B001MAZ, 1869240001MAZ, 1871080001MAZ,
1872610002MAZ, 1873070001MAZ, and B01530U966, which are covered by one or more
claims of the ’011 Patent.
176. For example, Jacques Moret directly infringes at least Claim 1 of the ’011 Patent.
177. Claim 1 of the ’011 Patent recites a circular knit brassiere comprising: a circularly
knit body portion having a pair of breast cups, an area between said pair of breast cups, and a
pair of side panels, each breast cup being positioned between said area and a different one of said
side panels, wherein said area has a baseline of stretchability, each of said breast cups has a first
degree of stretchability, and each of said side panels has a second degree of stretchability, said
first degree of stretchability being different from said second degree of stretchability.
178. As claimed in Claim 1 of the ’011 Patent, Jacques Moret’s Moret Ultra® brand bra
style 116869B008BMO (pictured below) includes an area between a pair of breast cups, the area
having a baseline of stretchability, the breast cups having a first degree of stretchability, and side
panels having a second degree of stretchability.
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Front view
Inside‐out Front view
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Breast cup with Area between breast cups Magnified first degree of with a baseline of Inside‐out stretchability stretchability Front view
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Magnified Inside‐out Side view Breast cup with first degree of stretchability
Side panel with second degree of stretchability
179. Jacques Moret’s Moret Ultra® brand bra style 116869B008BMO is a circular knit
brassiere.
180. Jacques Moret’s Moret Ultra® brand bra style 116869B008BMO is a brassiere
having a body portion that has a center region, the center region having a pair of breast cups, a
pair of side panels, and an area between the pair of breast cups.
181. Jacques Moret’s Moret Ultra® brand bra style 116869B008BMO is a brassiere
having breast cups, where each breast cup is positioned between the area between the breast cups
and a different one of the pair of side panels.
182. Jacques Moret’s Moret Ultra® brand bra style 116869B008BMO is a brassiere
where the area between the pair of breast cups has a baseline of stretchability, each of the breast
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cups have a first degree of stretchability, and each of the side panels has a second degree of
stretchability.
183. Jacques Moret has actual knowledge of the ’011 Patent.
184. Jacques Moret had actual knowledge of the ’011 Patent since before Jacques
Moret’s receipt of correspondence from Hanesbrands’ counsel to Jacques Moret’s counsel
emailed August 17, 2017.
185. On information and belief, Jacques Moret acted with full knowledge of the ’011
Patent and without a reasonable basis for believing that it would not be liable for actively
inducing the infringement of the ’011 Patent. At minimum, Jacques Moret was and continues to
be willfully blind to the existence of the ’011 Patent and continues to make, sell, offer for sale,
import into the United States, use, and direct others to use its infringing bra styles in infringing
manners.
186. On information and belief, Jacques Moret takes active steps to induce
infringement by others, including one or more of distributors, retailers, customers, and wearers
of the bras, of one or more claims of the ’011 Patent in violation of 35 U.S.C. § 271(b), including
customers that purchase Jacques Moret’s Moret Ultra bra style 116869B008BMO.
187. Such active steps by Jacques Moret include, but are not limited to encouraging,
advertising (including by internet websites), promoting, and instructing others, including
customers and/or wearers, to use and/or how to use its bras. For example, Jacques Moret
advertises and encourages the use of its Moret Ultra® brand bra styles:
https://www.moret.com/moret-ultra.
188. On information and belief, Jacques Moret knows or should know that such
activities induce others to directly infringe one or more claims of the ’011 Patent by selling,
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offering for sale and/or using its bras. For example, Jacques Moret knew or was willfully blind
that its actions induced others, including one or more of distributors, retailers, customers, and/or
wearers of the bras, to directly infringe the ’011 Patent by using, selling, and/or offering for sale
one or more of the Accused Products as of at least its receipt of correspondence from
Hanesbrands’ counsel to Jacques Moret’s counsel emailed August 17, 2017.
189. By way of at least Jacques Moret’s receipt of correspondence from Hanesbrands’
counsel to Jacques Moret’s counsel emailed August 17, 2017, Jacques Moret has known of the
’011 Patent and knows, or is willfully blind to the fact, that its acts induce the direct infringement
of one or more claims of the ’011 Patent by others, including one or more of distributors,
retailers, customers, and/or wearers of the bras.
190. Jacques Moret has engaged in egregious infringing behavior with knowledge of
the ’011 Patent, which has been duly issued by the United States Patent and Trademark Office,
and is presumed valid. On information and belief, Jacques Moret has known or should have
known that its actions constituted and continue to constitute infringement of the ’011 Patent and
that the ’011 Patent is valid at least as of Jacques Moret’s receipt of correspondence from
Hanesbrands’ counsel to Jacques Moret’s counsel emailed August 17, 2017. Jacques Moret
could not reasonably, subjectively believe that its actions do not constitute infringement of the
’011 Patent, nor could it reasonably, subjectively believe that the ’011 Patent is invalid. Despite
that knowledge and subjective belief, and the objectively high likelihood that its actions
constitute infringement, Jacques Moret has continued its infringing activities. As such, Jacques
Moret willfully infringes the ’011 Patent.
191. By its actions, Jacques Moret has injured Hanesbrands and is liable to
Hanesbrands for infringement of the ’011 Patent pursuant to 35 U.S.C. § 271.
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192. By its actions, Jacques Moret’s infringement of the ’011 Patent has irreparably
injured Hanesbrands. Unless such infringing acts are enjoined by this Court, Hanesbrands will
continue to suffer additional irreparable injury.
193. By its actions, Jacques Moret’s infringement of the ’011 Patent has damaged, and
continues to damage, Hanesbrands in an amount yet to be determined, of at least a reasonable
royalty and/or lost profits that Hanesbrands would have made but for Jacques Moret’s infringing
acts.
PRAYER FOR RELIEF
WHEREFORE, Hanesbrands respectfully requests that this Court grant the following
relief:
A. Enter judgment that the Asserted Patents have been infringed by Jacques Moret;
B. Enter judgment that Jacques Moret’s infringement of the Asserted Patents has been willful;
C. Award damages adequate to compensate Hanesbrands for the patent infringement that has occurred, together with pre-judgment interest and costs;
D. Perform an accounting for acts of infringement presented at trial and/or up to the judgment and an award by the Court of additional damage for any such acts of infringement;
E. Enter a preliminary and permanent injunction against Jacques Moret from further infringement, or alternatively, award an ongoing royalty for Jacques Moret’s post-verdict infringement, payable on each product or service offered by Jacques Moret that is found to infringe one or more claims of the Asserted Patents, and on all future products and services that are not colorably different from those found to infringe;
F. Award all other damages permitted by 35 U.S.C. § 284, including increased damages up to three times the amount of compensatory damages found;
G. Find that this is an exceptional case and award Hanesbrands its costs and reasonable attorneys’ fees incurred in this action as provided by 35 U.S.C. § 285; and
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H. Such other relief, including other monetary and equitable relief, as this Court deems just and proper.
DEMAND FOR JURY TRIAL
Plaintiff hereby requests a trial by jury pursuant to Rule 38 of the Federal Rules of Civil
Procedure.
HANESBRANDS INC.’S ANSWER TO JACQUES MORET’S AMENDED COUNTERCLAIMS
Plaintiff Hanesbrands Inc. (“Hanesbrands”) files this Answer to Defendant Jacques
Moret, Inc.’s (“Jacques Moret”) Amended Counterclaims. Hanesbrands denies the allegations
and characterizations in Jacques Moret, Inc.’s Counterclaims unless expressly admitted in the
following paragraphs.
THE PARTIES
1. Admitted.
2. Hanesbrands admits that it is a Maryland corporation, with a principal place of
business at 1000 East Hanes Mill Road, Winston-Salem, North Carolina 27105.
3. Hanesbrands admits it is the owner of all rights and interests in the ’664 Patent.
JURISDICTION AND VENUE
4. Hanesbrands admits that Jacques Moret’s Counterclaims arise under the patent
laws of the United States Code, 35 U.S.C. § 1, et seq.
5. Hanesbrands admits that this Court has subject matter jurisdiction over Jacques
Moret’s counterclaims pursuant to 28 U.S.C. §§ 1331 and 1338. Hanesbrands admits that venue
is proper under 28 U.S.C. § 1400(b) and the United States Supreme Court’s decision in TC
Heartland LLC v. Kraft Foods Group Brands LLC, No. 16-341, 137 S. Ct. 1514 (May 22, 2017).
Except as so admitted, the remaining allegations in paragraph 5 are denied.
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6. Hanesbrands admits that an actual controversy exists between Jacques Moret and
Hanesbrands regarding the ’664 Patent.
COUNTERCLAIM COUNT I – DECLARATION OF NON-INFRINGEMENT
7. Hanesbrands incorporates by reference its answers to the allegations in paragraphs
1–6. To the extent a response is required, Hanesbrands denies all allegations in paragraph 7.
8. Hanesbrands admits that an actual controversy exists between Jacques Moret and
Hanesbrands regarding the ’664 Patent. Except as so admitted, the remaining allegations in
paragraph 8 are denied.
9. Hanesbrands denies the allegations in paragraph 9.
10. Hanesbrands denies the allegations in paragraph 10.
11. Hanesbrands denies the allegations in paragraph 11.
12. Hanesbrands admits that Jacques Moret seeks a declaration that it does not
infringe the ’664 Patent. However, Hanesbrands denies that Jacques Moret is entitled to such
relief.
COUNTERCLAIM COUNT II – DECLARATION OF NON-INFRINGEMENT
13. Hanesbrands incorporates by reference its answers to the allegations in paragraphs
1–6. To the extent a response is required, Hanesbrands denies all allegations in paragraph 13.
14. Hanesbrands admits that an actual controversy exists between Jacques Moret and
Hanesbrands regarding the ’664 Patent. Except as so admitted, the remaining allegations in
paragraph 14 are denied.
15. Hanesbrands denies the allegations in paragraph 15.
16. Hanesbrands admits that the application that became the ’644 Patent was filed on
April 28, 1999, and the Notice of Allowance was signed on December 30, 1999.
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17. Hanesbrands admits that the Notice of Allowance was signed without any
rejections or other office actions filed by the patent examiner during examination of the ’664
Patent.
18. Hanesbrands admits that the patent examiner cited five references in the Notice of
References Cited. Hanesbrands admits that the patent examiner stated, “The prior art made of
record and not relied upon is considered pertinent to applicant’s disclosure.”
19. Hanesbrands admits that U.S. Pat. No. 4,682,479 issued to Bruce M. Pernick.
Hanesbrands also admits that this patent’s specification states, “While the seamless knit
composite panty garment blank of the present invention has been described as being knit in a
suitable form to form a pair of individual panties therefrom, it is to be understood that the seam
less knit composite garment blank may also include further portions on opposite ends thereof to
form a pair of bathing suit blanks, leotards, or the like, and wherein the additional knit portions
may form upper breast covering portions of such garments.” Hanesbrands otherwise denies the
allegations in paragraph 19.
20. Hanesbrands admits that U.S. Pat. No. 3,537,279 issued to P. C. Epley.
Hanesbrands lacks sufficient knowledge or information to admit or deny the allegations in
paragraph 20, and on that basis, denies the allegations in paragraph 20.
21. Hanesbrands admits that George Alexander Graham Browder, Jr. is the named
inventor of the ’664 Patent and a named inventor of U.S. Pat. Nos. 5,746,068 and 5,613,378.
Hanesbrands lacks sufficient knowledge or information to admit or deny the allegations in
paragraph 20, and on that basis, denies the allegations in paragraph 21.
22. Hanesbrands denies the allegations in paragraph 22.
23. Hanesbrands denies the allegations in paragraph 23.
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24. Hanesbrands denies the allegations in paragraph 24.
25. Hanesbrands denies the allegations in paragraph 25.
26. Hanesbrands denies the allegations in paragraph 26.
27. Hanesbrands admits that the specification of the ’664 Patent states “Such a
brassiere is formed with a single fabric with yarns and knit stitches selected for strength and
support without regard for bodily comfort of the wearer.” Hanesbrands otherwise denies the
allegations in paragraph 27.
28. Hanesbrands denies the allegations in paragraph 28.
29. Hanesbrands admits that Jacques Moret seeks a declaration by this Court that the
claims of the ’664 Patent are invalid. However, Hanesbrands denies that Jacques Moret is
entitled to such relief.
PRAYER FOR RELIEF
To the extent Jacques Moret’s “Prayer for Relief” requires a response, Hanesbrands
denies that Jacques Moret is entitled to any relief.
JURY TRIAL DEMAND
Jacques Moret’s request for a trial by jury does not require a response from
Hanesbrands.
Hanesbrands hereby requests a trial by jury pursuant to Rule 38 of the Federal Rules of
Civil Procedure.
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Dated: August 23, 2017 FISH & RICHARDSON P.C.
By: /s/ Susan E. Morrison Susan E. Morrison (#4690) 222 Delaware Avenue, 17th Floor P. O. Box 1114 Wilmington, DE 19899-1114 Phone: 302-652-5070 / Fax: 302-652-0607 [email protected]
P. Weston Musselman, Jr. Ricardo J. Bonilla William B. Collier, Jr. 1717 Main Street, Suite 5000 Dallas, Texas 75201 (214) 747-5070 [email protected] [email protected] [email protected]
ATTORNEYS FOR PLAINTIFF HANESBRANDS INC.
50