The opinion of the court was delivered by: Seybert, District Judge:
In this Lanham Act case, Plaintiff On Site Energy ("OSE") sued Defendant MTU Onsite Energy ("MTU") for trademark infringement. Pending before the Court is MTU's motion to exclude two of OSE's experts: Robert Schlegel and Henry Ostberg. (Docket Entry 44). MTU's motion is DENIED.
Federal Rule of Evidence 702 is the starting point for assessing whether experts may testify at trial. Rule 702 provides that:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
FED. R. EVID. 702. Districts courts act as "gate-keepers" whereby they make an initial determination whether an expert's testimony is both relevant and reliable. See Amorgianos v. Nat'l R.R. Passenger Corp., 303 F.3d 256, 264 (2d Cir. 2002). Expert evidence is relevant if it tends to make any fact of consequence to the litigation more or less probable. Id. at 265; see also FED. R. EVID. 401.
Expert evidence is considered reliable if the expert's theory is valid and if it has been properly applied to the facts of a particular case. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592-93, 13 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). In making a preliminary reliability assessment, courts are guided by the factors listed in Rule 702, and they may also consider a number of additional factors that the Supreme Court has identified in its precedents. See Amorgianos, 303 F.3d at 265. These factors include whether an expert's theory or technique (1) "can be (and has been) tested," Daubert, 509 U.S. at 593; (2) "has been subjected to peer review and publication," id.; (3) has an acceptable rate of error, see id. at 594; (4) is guided by accepted professional standards, see id.; and (5) is generally accepted within the relevant professional community, see id. The Court's gate-keeping inquiry "is fluid and will necessarily vary from case to case." Amorgianos, 303 F.3d at 266.
The proponent of an expert's testimony has the burden of satisfying the admissibility requirements by a preponderance of the evidence. The decision whether to admit or exclude a proposed expert's testimony is committed to the Court's broad discretion. E.g., Amorgianos, 303 F.3d at 264. District courts should generally exclude expert testimony "if it is speculative or conjectural or based on assumptions that are 'so unrealistic and contradictory as to suggest bad faith' or to be in essence 'an apples and oranges comparison.'" Zerega Ave. Realty Corp. v. Hornbeck Offshore Transp., LLC, 571 F.3d 206, 214 (2d Cir. 2009) (quoting Boucher v. U.S. Suzuki Motor Corp., 73 F.3d 18, 21 (2d Cir. 1996)). "[O]ther contentions that the assumptions are unfounded go to the weight, not the admissibility, of the testimony." Id. (alteration in original).
Robert Schlegel proposes to testify about (1) a hypothetical "reasonable royalty" for the trademark in issue, and (2) OSE's advertising expenditures in relation to the trademark. (Trial Ex. 164, Schlegel Report ...