On appeal, Adidas submitted that the images used are part of a campaign to unite South Africans and do not promote the sale of replica jerseys. Accordingly, the images forming part of the campaign do not constitute an advertisement for the jerseys. Furthermore it submitted that a hypothetical reasonable person would know that Adidas has been prohibited from producing the replica jerseys with the Protea logo.
The ASC dismissed these arguments. It pointed out that posters bearing the images with the Protea logo are placed at the point of sale of the replica jerseys which is intended to stimulate interest in and sales of the jerseys and thus constitute advertising. The advertising will also generate the expectation in the average reasonable consumer that the replica jerseys will contain all three logos. The appeal was dismissed and the Directorate’s ruling that Adidas is to remove the advertising stands.