(dissenting).
I must respectfully disagree that “purchasers would inevitably be aware of the actual source of the goods” here. The class of purchasers involved in this case is very similar to the “engineering firms” involved in Torr X-Ray Corp. v. Sierra Engineering Co., Cust. & Pat. App., 471 F.2d 1247 (1973) in which we held that the use of stylized RADI-FLUOR 360 on fluoroscopic testing units would be likely to cause confusion, mistake, or deception in view of the registered mark RADIFLO for leak testing apparatus. Engineers are not immune from confusion as to source of goods.
In the present case, the record establishes that appellant’s mark is well established in industry for a wide variety of measuring and testing devices and systems. The industries served by apparatus bearing appellant’s mark include the sewage industry, the very industry in which most of appellee’s flumes are used. Appellant’s ACCURAY devices are used in conjunction with just such flumes as appellee’s. One of appellant’s systems consists of a source of radiation mounted on one side of a flume, with a radiation detector mounted on the other side of the flume. The source and detector are used to sense the level of liquid in the flume, thus automatically indicating flow rate, instead of visually determining the liquid level and thus the flow rate. A radiation source and a detector have also been used to measure the density of the material going through the flume. In my opinion, those “consulting engineers, sewage and industrial waste engineers and [purchasing agents for] public agencies” familiar with either of appellant’s systems in which ACCURAY instruments are mounted on either side of flow-measuring flumes, when confronted with flow-measuring flumes bearing the mark ACCURA-FLO, would be likely to ascribe those flumes to the manufacturer of the ACCURAY systems. Such being the case, I would reverse the decision of the board.