Progressive Green Pty Ltd v Flo Energy Pty Ltd

This was a Federal Court trade mark fight in the Australian energy retail market. Progressive Green had operated as an energy retailer since 2009 and had traded under the name Flow Power since 10 March 2017. It owned three registered FLOW POWER word marks covering, most relevantly, electricity, retailing of electricity, and a range of energy-related information, data and software services.

Flo Energy Australia entered the market in 2024 using FLO and FLO ENERGY branding, a device mark and the domain floenergy.com.au. Those signs were not registered. Progressive Green sued, alleging infringement of its registered FLOW POWER marks. That is the part of the case many business owners would expect in a standard branding dispute.

But the case did not stop there. The respondents also relied on an older registered mark, FLOWSMART, with a 2013 priority date. In 2024, that mark was purchased from EnergyAustralia by a corporation with a common director with the respondents. The first respondent was licensed to use it and the second respondent was later assigned it. Progressive Green then attacked FLOWSMART as well, arguing for removal for non-use and, alternatively, cancellation because use of FLOWSMART was likely to deceive or cause confusion due to the reputation of Flow Power.

The respondents responded in kind. They denied infringing the FLOW POWER registrations and cross-claimed to cancel those registrations. Their arguments included that FLOW POWER was not capable of distinguishing the relevant goods and services and that it was deceptively similar to the earlier FLOWSMART mark. They also alleged that Progressive Green’s own use of the Flow Power marks infringed FLOWSMART.

So this was not a simple case of one trader accusing another of copying a brand. It became a multi-layered contest about current branding, earlier registrations, non-use, distinctiveness, deceptive similarity, cancellation and statutory defences.

The reasons show that the Court looked closely at both the commercial conduct and the documentary record. On Progressive Green’s side, the Court referred to the 2016 rebrand, the shortlist of names including Flow, Kin and Hello Power, and legal advice obtained shortly before launch. The available text records email advice from an intellectual property solicitor discussing FLOW ENERGY, FLOW POWER and marks featuring FLOW, including SmartFlow owned by EnergyAustralia. The advice suggested that adding descriptive words such as power or energy might help distinguish the brand from earlier marks.

That part of the story matters because trade mark disputes often turn on what a business knew, considered or was told before launch. It does not mean that receiving advice decides the case by itself. But it can help explain how a brand was adopted, whether adoption was honest, and how close the business came to known risks.

On the respondents’ side, the Court examined the 2024 use of FLO and FLO ENERGY in the market and also the acquisition, licensing and later assignment of FLOWSMART. The structure of the reasons shows that the Court considered whether FLOWSMART was used on a dashboard, whether it was used in correspondence with a prospective customer, whether that use was in good faith, and whether it was authorised under the licence arrangement. The catchwords also show that the Court considered the fact that the mark was purchased for the purpose of litigation.

For business owners, this is a reminder that trade mark cases are evidence-heavy. The Court may look beyond the registration certificate and ask practical questions such as how the mark appeared in software, on websites, in customer communications, under what licence terms, and at what time. If your records are weak, your position can become much harder to prove.

The Court had to decide several linked questions under the Trade Marks Act 1995 (Cth). First, Progressive Green sought removal of FLOWSMART for non-use. The reasons show the Court had to decide whether FLOWSMART had been used during the relevant non-use period, whether that use was as a trade mark, whether it was in relation to the relevant services, whether it was in good faith, and whether the use was authorised.

Second, Progressive Green sought cancellation of FLOWSMART on the basis that use of that mark was likely to deceive or cause confusion because of the reputation of the Flow Power marks. That required the Court to assess the evidence of reputation and whether it was sufficient for the cancellation ground relied on.

Third, Progressive Green alleged that the respondents’ use of FLO and FLO ENERGY infringed the registered FLOW POWER marks. That raised the familiar infringement question of deceptive similarity between the signs used by the respondents and the registered marks owned by Progressive Green.

Fourth, the respondents cross-claimed to cancel the registered FLOW POWER marks. The reasons show two main cancellation routes. One was that the marks were not capable of distinguishing the relevant goods and services because they were not inherently adapted to distinguish and the evidence did not establish the required factual distinctiveness. The other was that the marks were deceptively similar to the earlier FLOWSMART mark and should not have been accepted for registration.

Fifth, the respondents alleged that Progressive Green’s own use of the Flow Power marks infringed FLOWSMART. Progressive Green relied on statutory defences, including the defence based on exercising rights under its own registrations and the defence that it would obtain registration if it applied at the relevant time. The Court therefore had to consider not just whether the marks were similar, but also how those defences operated when registrations were later found liable to cancellation.

On the Court’s summary of conclusions, the result was mixed and commercially significant for both sides.

First, FLOWSMART stayed on the register. The Court concluded that it had been used over a relevant four-day period, so it was not susceptible to removal for non-use. The Court also concluded that the evidence did not establish that the reputation in the Flow Power marks was sufficient to demonstrate that use of FLOWSMART was likely to deceive or cause confusion for the cancellation ground relied on. Because FLOWSMART remained registered, the Court said it had, and continued to have, the benefit of a complete defence to the allegation that its use infringed the registered FLOW POWER marks.

Second, Progressive Green succeeded on its infringement claim against FLO ENERGY. The Court concluded that the FLO ENERGY marks and the registered FLOW POWER marks were deceptively similar, so the first respondent’s use of those marks was infringing.

Third, however, the Court also concluded that the registered FLOW POWER marks should be cancelled. The Court said they were only faintly adapted to distinguish, so evidence and other circumstances had to establish an entitlement to registration. On the Court’s findings, the evidence did not establish the capacity of the registered FLOW POWER marks to distinguish the goods and services for which they were registered. The Court also concluded that the registered FLOW POWER marks were deceptively similar to the earlier FLOWSMART mark, that this deceptive similarity existed at the time of registration, and that it would not be proper to accept a hypothetical application for registration in the circumstances. The Court declined to exercise its discretion to preserve the registrations.

Fourth, on the respondents’ cross-claim that Progressive Green infringed FLOWSMART, the Court held that Progressive Green could rely on the statutory defence based on exercising rights under its registered marks, although that defence would cease to be available when orders were made giving effect to the reasons. The Court separately considered the other statutory defence and concluded it did not assist Progressive Green. The Court also said the defence based on registration was not available in respect of the word FLOW by itself, which Progressive Green admitted was deceptively similar to FLOWSMART, and no defence under the alternative provision was established for that use.

The Court did not settle the final operative orders in the reasons themselves. Instead, it directed the parties to provide proposed orders and costs submissions within 14 days of publication of the judgment.

There are several practical points for businesses choosing, registering and enforcing brands.

First, a registration is valuable, but it is not the end of the analysis. A business may sue for infringement and still face a counterattack on the validity of its own registration. That is exactly what happened here. If your mark is vulnerable on distinctiveness or earlier-rights grounds, litigation can expose that weakness.

Second, descriptive pressure matters. The Court’s summary says FLOW POWER was only faintly adapted to distinguish. In practical terms, that means the mark was seen as having limited inherent capacity to identify one trader’s goods or services as distinct from others. Businesses in technical or regulated sectors often want names that sound close to the service itself. That may be attractive commercially, but it can create legal weakness.

Third, evidence around the priority date matters. Where a mark is only weakly distinctive, the business may need strong evidence showing that the mark did in fact distinguish its goods or services at the relevant time. General success later on may not be enough if the statutory question is tied to the earlier filing period.

Fourth, non-use attacks can be harder than they look. The Court found that use over a short four-day period was enough to defeat the non-use challenge to FLOWSMART. Businesses should not assume that a mark is vulnerable simply because market use appears limited. The legal question is narrower and more technical than that.

Fifth, licensing and acquisition structures need to be documented carefully. The reasons show that authorised use and control were live issues. If a related company is using a mark under licence, the paperwork and actual control arrangements may become central.

Sixth, timing matters. The Court held that Progressive Green could rely on a statutory defence for past conduct based on its registrations, but that defence would cease when orders were made giving effect to the reasons. That is a reminder that the legal position can change between reasons and final orders.

The judgment is dated 29 October 2025 and was delivered by Bennett J in the Federal Court of Australia. The hearing dates listed in the reasons were 31 March to 2 April 2025 and 17 April 2025.

The Court ordered that within 14 days of publication of the judgment the parties provide a joint minute of orders giving effect to the reasons, or competing orders and short submissions if they could not agree. The same timetable applied to costs. That means the reasons contain the Court’s conclusions, but the final operative orders should be checked before relying on the case for any step that depends on the exact form of relief granted.

The available factual material is not complete because the published text cuts off part way through the detailed background. The main conclusions are clear from the summary section of the reasons, but some finer factual detail should be read with that limitation in mind.

This case note is based on the published Federal Court reasons in Progressive Green Pty Ltd v Flo Energy Pty Ltd [2025] FCA 1315. The reasons identify the parties, the registered marks, the hearing dates, the Court’s summary of conclusions and the timetable for proposed orders and costs submissions.

The available factual text is truncated before the full background is set out. Because of that, this page focuses on the conclusions that are clearly stated in the reasons and avoids adding factual detail that is not visible from the published material referred to here.