What would happen when a well-established Australian energy company, which has spent years building a brand around a specific name, finds itself in a legal battle with a newcomer using a nearly identical name? Most people would assume that the company with the registered trade mark would naturally prevail in the dispute. However, the recent decision by the Federal Court of Australia in the case of Progressive Green Proprietary Limited versus Flo Energy Australia Proprietary Limited [2025] FCA 1315 shows otherwise. This case serves as a powerful reminder that the strength of a brand depends not just on registration, but on how unique the name actually is and how strategically a competitor can use the existing legal landscape to their advantage.
This was a dispute over the word “Flow” in the energy sector. Progressive Green Proprietary Limited, which has traded under the name “Flow Power” since March 2017, took legal action against a newer competitor, Flo Energy Australia Proprietary Limited. Progressive Green alleged that Flo Energy’s use of the names “Flo” and “Flo Energy” infringed upon their registered trade marks for “Flow Power”. In a surprising turn of events, the court did not just look at whether the names were similar, but it ended up cancelling Progressive Green’s own trade mark registrations, leaving them without the legal protection they thought they had.
Background of the Case
Progressive Green Proprietary Limited entered the Australian electricity market in 2009 and decided to rebrand as “Flow Power” in early 2017. They were quite successful, growing to become significant players in the commercial and industrial energy space. By the time this case reached court, they were ranked as the eighth largest retailer by market share in that specific sector. They held several registered trade marks for the words “Flow Power” covering electricity supply, data analysis, and energy management software.
Flo Energy Australia Proprietary Limited, on the other hand, was a much newer arrival. It was incorporated in January 2023 as part of an international expansion by its Singapore-based parent company, Flo Holding Private Limited. When they began offering electricity services to commercial customers in Victoria and other states 2024, they used the branding “Flo” and “Flo Energy”. They had already established this brand in Singapore and intended to maintain a consistent global identity.
The conflict became inevitable when Progressive Green realized that a new retailer was entering the market with a name that sounded exactly like their own, even if it was spelled differently. They reached out to regulators and eventually filed a lawsuit, claiming that Flo Energy was infringing on their “Flow Power” marks.
Flo Energy, however, acquired an older mark with priority, “FlowSmart” to not only defend against Progression Green, but also to threaten their registration of the “Flow Power” mark.
Issues Before the Court
The court had to untangle several complex questions to reach a verdict-
- Were the “Flo Energy” and “Flow Power” names so similar that they would cause confusion among consumers?
- Was the name “Flow Power” actually unique enough to deserve trade mark protection, or was it just describing the service being sold?
- Should the “Flow Power” mark be cancelled because they were deceptively similar to the older “FlowSmart” mark?
- Did Flo Energy use the “FlowSmart” mark in good faith, or was it just a sham to help them in the lawsuit?
Strategic “FlowSmart” Maneuver
One of the most fascinating aspects of this case was the legal strategy employed by Flo Energy. Once they were sued, they didn’t just defend their use of the name “Flo”. They looked for a way to take the upper hand. They discovered an old, mostly unused trade mark called “FlowSmart”, which had been registered by EnergyAustralia in 2013, i.e. 4 years before Progressive Green had even applied for “Flow Power”.
In the middle of the litigation, Flo Energy arranged for a related company to purchase the “FlowSmart” mark from EnergyAustralia. This was a brilliant, yet aggressive, tactical move. By owning “FlowSmart”, they could argue that Progressive Green’s “Flow Power” marks should never have been registered in the first place because they were too similar to the older “FlowSmart” name. They also used “FlowSmart” as a shield, arguing that since their own use of the name was protected by an earlier registration, they couldn’t be found to have infringed on Progressive Green’s later marks.
Progressive Green tried to fight back by asking the court to remove the “FlowSmart” mark for “non-use”, arguing that EnergyAustralia hadn’t used it for years. However, Flo Energy had quickly integrated the “FlowSmart” name into their digital customer dashboard and used it in a few commercial communications just before the legal deadline. Justice Bennett later ruled that even though this use was very limited, occurring over only a four-day period, it was enough to constitute “good faith” commercial use. Consequently, the “FlowSmart” mark remained on the register, and it became the primary weapon used to dismantle Progressive Green’s case.
Problem of “Descriptive” Names
A major hurdle for Progressive Green was the nature of the name “Flow Power” itself. Under Australian law, a trade mark must be “capable of distinguishing” one business’s goods or services from another’s. The court found that both “Flow” and “Power” are highly descriptive words in the electricity industry. Electricity “flows”, and it is literally “power”.
Justice Bennett observed that other honest traders might legitimately want to use words like “power flow” or “flow of power” to describe their services. While Progressive Green argued that the specific combination of “Flow Power” was unique, the judge disagreed, stating that the marks were only “faintly adapted to distinguish” the business.
When a name is this descriptive, the owner has to prove that it has acquired a massive reputation so that people immediately associate those words with that specific company. Progressive Green provided evidence of their revenue, their customer base, and their marketing efforts, including advertisements in major newspapers like the Australian Financial Review. However, the court found this evidence insufficient. Because electricity is a “mass market” product used by millions, having a few thousand commercial customers and some sporadic newspaper ads wasn’t enough to prove a “substantial reputation” across the whole of Australia. Without that overwhelming evidence of fame, the descriptive name couldn’t be saved.
Deceptive Similarity issue
The second hurdle to Progressive Green’s case was the comparison with “FlowSmart”. The court found that “Flow Power” and “FlowSmart” were deceptively similar because they shared the same dominant first word, “Flow” and were used for the exact same types of services.
As because “FlowSmart” had an earlier priority date, the law says that “Flow Power” should not have been registered if it was likely to cause confusion with the earlier mark. Flo Energy’s strategy of buying the older mark worked perfectly. They were able to show that Progressive Green’s marks were “wrongly remaining on the register” because of this conflict. As a result, Justice Bennett ordered the cancellation of Progressive Green’s trade marks.
Meaning of “Good Faith” Use
This case also provides a very clear lesson on what counts as “using” a trade mark. Progressive Green argued that Flo Energy’s sudden use of “FlowSmart” on a customer dashboard was a cynical ploy designed only for the litigation. They pointed out that Flo Energy usually avoided using the letter “w” in their branding (using “Flo” instead of “Flow”), so adopting “FlowSmart” was inconsistent with their brand identity.
However, the court explained that a company’s motives don’t really matter as long as the use is “real and genuine” in a commercial sense. As because Flo Energy had actually integrated the name into a functioning software platform used by real customers to track their electricity, it wasn’t a “sham”. The fact that they did it specifically to protect the mark from a non-use claim didn’t make the use dishonest. A very small amount of use can be enough to save a trade mark from being deleted, provided it is part of a real business activity.
Key Takeaways for Business and Brand Owners
This decision provides important practical lessons for anyone managing a brand.
Firstly, avoid being too descriptive. If your brand name simply describes what you do (like “Flow Power” for electricity), the application is already weak. It is much harder to defend a descriptive name than a completely unique or “invented” word. If you do choose a descriptive name, you must be prepared to spend heavily on marketing to prove that the public recognizes it as your specific brand and nothing else.
Secondly, the “First Word” matters. In this case, the fact that both marks started with “Flow” was a decisive factor in finding them deceptively similar. When choosing a name, don’t just look at the whole phrase; look at whether the “dominant” part of the name is already being used by someone else in your industry.
Thirdly, act quickly on non-use. If you think a competitor has an old mark that is blocking your way, consider filing a non-use application sooner rather than later. Progressive Green waited until the litigation was well underway, which gave Flo Energy the time to “reactivate” the “FlowSmart” mark with some genuine commercial use.
Finally, registration is a shield, but not an invincible one. Progressive Green had registered marks, but they were still cancelled. Owning a registration gives you a defense against infringement claims for your past conduct, but it doesn’t guarantee you can stop others if your mark was never legally “strong” enough to begin with.
Conclusion
The battle between Flow Power and Flo Energy is a cautionary tale for the modern business world. It shows that the “flow of power” in a legal sense doesn’t always stay with the biggest or most established company. By failing to choose a truly distinctive name and failing to account for the older “FlowSmart” registration, Progressive Green left itself vulnerable.
For other businesses, the message is clear, i.e. when it comes to branding, clarity and uniqueness are your best safeguards. In a crowded marketplace where digital presence is everything, you need a name that doesn’t just describe what you sell but truly stands out as your own. As this case proves, if your brand is built on common words, even a registered trade mark might not be enough to keep your competitors at bay when the legal tide turns.
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