From Kenneth A. Plevan, Daubert's Impact on Survey Experts in Lanham Act Litigation, vol. 95, The Trademark Reporter, May-June 2005, pages 603,604

In Half Price Books, Records, Magazines, Inc. v. Barnesandnoble.com, LLC, ⁴⁸ civil plaintiff bookseller brought an action for alleged infringement of its HALF PRICE BOOKS, RECORDS, MAGAZINES mark by defendant, which had begun to use phrases such as "Half-Price Books & Special Values" and "Half-Price Books" in selling its products.⁴⁹ In the course of responding to defendant's motion for summary judgment, plaintiff moved to strike certain evidence presented by defendant in support of its motion, including the expert report of Gabriel M. Gelb, ⁵⁰ which, without the aid of consumer survey, sought to demonstrate that the term "Half Price Books" did not indicate a single source to consumers. ⁵¹ Plaintiff argued that the report should be stricken, inter alia, because Gelb did not explain what specialized knowledge he had to support his opinions and because his opinions were unreliable.

The court found that Gelb's experience and knowledge was "specialized" enough to allow the admission of his report and that a valid connection existed between Gelb's testimony and the issues in this case. ⁵³ In responding to plaintiff's contention that Gelb had failed to adequately explain how he reached the conclusions on whether certain terms were generic, the court stated that it "should not determine the merits of the case", that is, "the quality or effect of the testimony," but rather only rule on admissibility. ⁵⁴ The court held that Gelb's report met the standard for admissibility under Federal Rule of Evidence 702, noting that plaintiff could "attack the content and sufficiency of Gelb's testimony" in a response to defendant's summary judgment or at trial.⁵⁵

48. Action No. 3:02-CV-2518-G, 2004 U.S. Dist. LEXIS 23691 (N.D. Tex. Nov. 22, 2004).
49. Id. at *23
50. See id. at *4.
51. See id. at *12.
52. Id. at *9-10.
53. Id. at *10-13
54. Id. at *15-17.
55. Id. at *17.