In the

United States Court of Appeals

For the Seventh Circuit

No. 00-3833

First Health Group Corp., formerly known as

Healthcare Compare Corp., doing business

as The First Health AFFORDABLE Medical

Networks,

Plaintiff-Appellant,

v.

BCE Emergis Corporation, formerly known as

United Payors & United Providers, Inc.,

doing business as UP&UP,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 96 C 2518--James B. Moran, Judge.

Argued September 11, 2001--Decided October 16, 2001

 Before Cudahy, Easterbrook, and Williams,

Circuit Judges.

 Easterbrook, Circuit Judge. What is a

"preferred provider organization" (ppo)?

Our litigants, two intermediaries between

hospitals and insurers, disagree about

the answer. Plaintiff, which we call

First Health, believes that it is

misleading, and actionable under

sec.43(a)(1)(B) of the Lanham Act, 15

U.S.C. sec.1125(a)(1)(B), to apply the

label "ppo" or anything similar (such as

"preferred provider network") to any

business structure other than one in

which the insurer compels its clients to

use the "preferred" suppliers of medical

care. Defendant, which we call up&up,

labels First Health’s business model a

"directed ppo," to distinguish it from the

"non-directed ppo" or "silent ppo" system

that it manages. up&up negotiates price

reductions with hospitals (often in

exchange for a capital contribution as

well as a promise of extra business) and

signs up insurers at these favorable

prices. Insurers are supposed to offer

their clients some incentive to use the

participating hospitals, for example by

reducing copayments, but are not obliged
to direct the insureds exclusively to the

hospitals participating in the plan.

Hospitals typically contract with First

Health for a 40% discount from list

price, while they allow up&up only 20%

off, even though up&up offers direct

financial support that First Health does

not. Although the discrepancy in discount

rates implies that hospitals well

understand the difference in businessgeneration potential between the systems,

First Health insists that it is deceptive

for up&up to refer to its business as a

form of "ppo." First Health also contends

that up&up hoodwinked hospitals by

promising that insurers would induce

patients to use participating hospitals.

 After the district court granted summary

judgment to up&up under sec.43(a)(1)(B)

and some related theories, 95 F. Supp. 2d

845 (N.D. Ill. 2000); 2000 U.S. Dist.

Lexis 5964 (N.D. Ill. Apr. 10, 2000), but

held that one claim (for trademark

infringement) requires additional factual

development, the parties entered into an

agreement under which First Health

dismissed its trademark claim and the

district court entered a judgment. The

parties’ agreement, which the district

court incorporated into its judgment,

provides that First Health will be free

to reinstate the trademark claim, but

only if we reverse at least in part with

respect to the involuntarily dismissed

theories. Both parties then briefed the

appeal as if it had been taken from a

judgment terminating the whole case. They

did not mention the reservation of right

to reinstate a claim, or address its

jurisdictional significance, until this

court noted the problem on its own and

required the parties to file supplemental

memoranda before argument.

 A series of decisions, including ITOFCA,

Inc. v. MegaTrans Logistics, Inc., 235

F.3d 360 (7th Cir. 2000); JTC Petroleum

Co. v. Piasa Motor Fuels, Inc., 190 F.3d

775 (7th Cir. 1999); and Horwitz v. Alloy

Automotive Co., 957 F.2d 1431 (7th Cir.

1992), show that the parties’ strategy

jeopardizes appellate jurisdiction. All

of these cases hold that the dismissal of

one claim or theory without prejudice,

with a right to reactivate that claim

after an appeal on the remaining

theories, makes the judgment non-final.

The parties’ dispute has not been fully

resolved, and the remaining elements are
apt to come back on a second appeal.

Sometimes a partial final judgment with

respect to particular claims is

authorized by Fed. R. Civ. P. 54(b), but

when the requirements of that rule are

not satisfied, the parties and district

judge are not at liberty to home-brew

their own approach to obtaining appellate

review while portions of the case remain

unresolved. Neither side suggested that

Rule 54(b) could have been used in this

case; there is too much overlap between

the trademark-infringement and falseadvertising theories. Another method of

obtaining interlocutory appeal, the

certification of an order under 28 U.S.C.

sec.1292(b), was tried by the district

court, but a motions panel declined to

accept the appeal. It is especially

inappropriate for the parties and

district judge to try a back-door

approach to interlocutory review after we

have turned them away at the front door.

 Nonetheless, the parties insist, the

right to reinstate the dismissed theories

here differs from the stratagems

disapproved in ITOFCA, JTC Petroleum, and

Horwitz, because reinstatement is

contingent on a remand of at least one

theory. If no appeal had been taken, then

the litigation would have been over; in

this sense the judgment must be final,

the parties insist. Moreover, if we

affirm the case stays over, and there can

be no succession of appeals. This shows

that First Health has taken a larger

gamble than the appellants did in our

prior cases, but does the difference

matter to jurisdiction? Sometimes it

does. Suppose, for example, that a

plaintiff is unable to obtain discovery

on which its case depends. Rather than go

through the formality of a trial, the

parties may stipulate that the defendant

would prevail on the existing record.

Then the court would enter a judgment for

the defendant based on the stipulation,

allowing the plaintiff to appeal.

Decisions such as Martin v. Franklin

Capital Corp., 251 F.3d 1284, 1288-89

(10th Cir. 2001), hold that the judgment

is final under these circumstances, even

though a reversal on the discovery matter

would reactivate the main dispute and

likely lead to another appeal down the

road. Cf. Downey v. State Farm Fire &

Casualty Co., No. 00-3473 (7th Cir. Sept.

17, 2001), slip op. 9-11.
 To decide whether we have appellate

jurisdiction given the events as they

stood in the district court, we would

have to decide whether the principle that

allows a dispositive issue to come up,

when the plaintiff is willing to stake

the entire case on its resolution,

extends to multiple claims for relief.

But events are no longer what they were.

First Health offered in its memorandum

addressing jurisdiction to dismiss its

trademark claim, if we first determined

that the existing judgment is non-final.

At oral argument the court made it clear

that First Health would not be given that

opportunity; the court is not willing to

make a decision about appellate

jurisdiction only to have the effect of

that decision manipulated after the event

by the parties. It would become an

advisory opinion. There are only two

options, we informed counsel: if the

judgment is final, we resolve the appeal

on the merits; if the judgment is not

final, we dismiss the appeal, which stays

dismissed until the litigation is wrapped

up in the district court. At that point

First Health elected to dismiss its

trademark claims unconditionally, so that

they cannot be reinstated no matter what

happens on this appeal. JTC Petroleum

held that such an election, by averting

any possibility of a future appeal on a

different claim, permits the appeal to

proceed. So on the authority of JTC

Petroleum we shall resolve this appeal,

without deciding whether the appeal would

have been dismissed had First Health

retained its right to reinstate an

additional claim following any remand.

 First Health’s claims arise out of

up&up’s description of its system as

creating a "preferred" provider

organization or network. Applying the ppo

label to a system that lacks a list of

hospitals that the insureds must use is

misleading, according to First Health--

and, although no hospital, insurer, or

patient has joined this suit, First

Health believes that its competitive

losses to up&up enable it to obtain relief

under sec.43(a)(1)(B) of the Lanham Act,

as a business harmed by up&up’s false

advertising. Section 43(a)(1) provides in

part:

Any person who, on or in connection with

any goods or services, or any container

for goods, uses in commerce any word,
term, name, symbol, or device, or any

combination thereof, or any false

designation of origin, false or

misleading description of fact, or false

or misleading representation of fact,

which . . . (B) in commercial advertising

or promotion, misrepresents the nature,

characteristics, qualities, or geographic

origin of his or her or another person’s

goods, services, or commercial

activities, shall be liable in a civil

action by any person who believes that he

or she is or is likely to be damaged by

such act.

First Health contends that use of the

term "ppo" in connection with up&up’s

system is a "false or misleading descrip

tion of fact" that appears "in commercial

advertising or promotion" and

"misrepresents the nature . . . of

[up&up’s] services". Moreover, First

Health believes, up&up has further

deceived hospitals by promising that

insurers will provide additional business

by inducing patients to use their

services. This is false, or at least

misleading, First Health submits, because

up&up does not tell the hospitals that it

views the discounts themselves as

inducements to use the hospitals, even if

the financial benefits of these

inducements are not passed on to patients

(as by reductions in copayments), and

even if patients do not learn about the

discounts until they have used a

particular hospital for the first time.

The prospect of repeat business after a

given patient knows about the discount is

not enough to satisfy up&up’s contractual

promises to hospitals, First Health

insists. Once again it claims injury as a

competitor, this time redressable under

the common law or state consumer-fraud

statutes.

 One preliminary question is how the

negotiations between up&up and particular

hospitals--negotiations handled in

private, among business executives and

lawyers-- could be called "commercial

advertising or promotion," an essential

ingredient of any claim under

sec.43(a)(1)(B). The district court

treated "commercial advertising or

promotion" as a synonym for all

commercial speech that the first

amendment allows the federal government

to regulate. See 1998 U.S. Dist. Lexis

3183 (N.D. Ill. Mar. 12, 1998). In
reaching this conclusion it relied on a

line of decisions by other district

courts that follow a multi-factor

approach for determining the scope of

sec.43(a). See, e.g., Gordon & Breach

Science Publishers S.A. v. American

Institute of Physics, 859 F. Supp. 1521

(S.D.N.Y. 1994) (the originator of this

four-part test). We have serious doubts

about the wisdom of displacing the

statutory text in favor of a judicial

rewrite with no roots in the language

Congress enacted. Treating sec.43(a)(1)

as filling all ground that the

Constitution allows to the legislature is

especially implausible, for when the

Lanham Act was adopted there were no

constitutional limits on the regulation

of commercial speech. See Valentine v.

Chrestensen, 316 U.S. 52 (1942),

overruled by Virginia Board of Pharmacy

v. Virginia Citizens Consumer Council,

Inc., 425 U.S. 748 (1976). Any plan to

occupy all of theconstitutionally

permitted space would have used the

phrase "commercial speech," rather than

"advertising or promotion" in

sec.43(a)(1)(B), and the variety of other

scope rules found elsewhere in the

statute. The language and structure of

sec.43(a)(1)(B) do not suggest a line

between commercial and political speech,

with the former completely covered and

the latter not. They suggest a line

between varieties of commercial speech.

 Advertising is a form of promotion to

anonymous recipients, as distinguished

from face-to-face communication. In

normal usage, an advertisement read by

millions (or even thousands in a trade

magazine) is advertising, while a personto-person pitch by an account executive

is not. So we have held in a series of

disputes that require a definition of

"advertising injury" under insurance

policies. See, e.g., Zurich Insurance Co.

v. Amcor Sunclipse North America, 241

F.3d 605 (7th Cir. 2001); Western States

Insurance Co. v. Wisconsin Wholesale

Tire, Inc., 184 F.3d 699 (7th Cir. 1999).

Zurich put it this way: "Advertising is a

subset of persuasion and refers to

dissemination of prefabricated

promotional material." 241 F.3d at 607.

Now this is as a matter of ordinary

usage; perhaps "commercial advertising or

promotion" in sec.43(a)(1)(B) is a term

of art. Yet First Health has not offered

any material from the time of the Lanham
Act’s adoption (either legislative

history or other examples of usage in the

legal community) implying that the

statutory phrase "commercial advertising

or promotion" means anything other than

what a user of normal English would

assume. To repeat an illustration from

Zurich: First Health’s lawyers were

engaged in persuasion when they filed

their briefs and presented oral argument

to this court, but they were not engaged

in "commercial advertising or promotion"

in any useful sense of that phrase. Their

written and oral advocacy did not become

"commercial advertising or promotion"

just because the first amendment allows

this court to regulate the practice of

law (as by sanctioning frivolous

arguments or misstatements about the

contents of the record). We held in

Zurich that statements by a firm’s sales

force could not be called "advertising";

likewise, it is hard to see how

statements of up&up’s executives and

lawyers, made over a conference table in

an effort to negotiate a contract, or

included in the contract’s language,

could be called "commercial advertising

or promotion".

 Because the district court treated

"commercial advertising or promotion" as

synonymous with all commercial speech, it

did not conduct the inquiry necessary to

determine whether any of up&up’s sales and

contracting endeavors entailed

promotional material disseminated to

anonymous recipients. We shall therefore

assume that sec.43(a)(1)(B) applies to

some of up&up’s promotional materials.

Still, this does not much help First

Health, because like the district court

we conclude that First Health has not

established that any of up&up’s statements

was false or even misleading. What First

Health wants--a judicial decree that only

businesses using a single model can

employ the term "ppo" or the phrase

"preferred provider network"--is nothing

less than an order establishing property

rights in the language. Words are not

born with meanings. They acquire meaning

with use, and as use changes so does

meaning. It may well be that all of the

initial ppos were "directed." But for many

years not only up&up but also other

similar intermediaries have been offering

what they call silent or non-directed

ppos. Both have become standard usages. To

see this, one need go no farther than the
proceedings of the Office of Personnel

Management, which conducted an inquiry

into the kinds of medical plans that

would be offered to federal employees as

fringe benefits. One of the ensuing

reports, Office of the Inspector General,

Office of Personnel Management, Rep. No.

99-00-97-054, Report on the Use of Silent

ppos in the Federal Employees Health

Benefits Program 20-23 (1998), not only

uses the phrase "silent ppo" exactly as

up&up does but also concludes that the

arrangement can produce benefits for

consumers, just as directed ppos do.

Legislative committees have used the term

just as up&up and opm do. E.g., S. Rep.

No. 257, 105th Cong., 2d Sess. 3 (1998).

We cannot imagine a court issuing an

injunction that would prohibit up&up from

using "ppo" or "silent ppo" in the same

way units of the national government use

that phrase. First Health should have

turned to an advertising agency, not to a

court, in search of a response to its

business rivals. If directed ppos are

"better" than silent ppos, then First

Health should be able to explain this to

potential customers--for recall that both

First Health and up&up deal with business

executives and lawyers, not with patients

who may miss the distinction conveyed by

"directed" versus "silent."

 No business is entitled to a trial after

which judge and jury will determine how

language ought to be used, as if usage

were a question of law or logic. It is

enough to guard against misleading

expressions that play on how language is

used. Perhaps First Health might have

some room for maneuver if it could show

that the linguistic community of hospital

executives and lawyers differs from that

of Congress and the opm--though even so it

is doubtful that the Lanham Act may be

employed to ensure that language, used in

accord with normal rules of grammar and

diction, cannot be misinterpreted. See

Mead Johnson & Co. v. Abbott

Laboratories, 201 F.3d 883 (7th Cir.

2000). But this is a subject we need not

explore, because First Health lacks

evidence that hospitals were deceived by

what up&up said. It offered "expert"

evidence that hospitals were bound to be

confused by the difference between

directed and silent ppos, but why ask an

"expert" when the hospitals can and do

speak for themselves? That First Health

receives on average twice the discount
offered to up&up shows that hospitals

understand the difference between the two

plans.

 Asked at oral argument to identify its

best evidence that hospitals were

deceived, First Health identified the

letters some hospitals sent to up&up

terminating their contracts. We have

reviewed these letters and found no

evidence of confusion at the time the

contracts were signed. None of the

hospitals professes a failure to

appreciate the difference between

directed and silent ppos. Some of the

letters show a good understanding of the

difference, but disappointment with the

economic consequences of a silent ppo

arrangement. (E.g., "In response to the

growing concerns and identification of

’Silent-ppos’, Columbia Healthcare

Corporation, South Texas Division is

amending all managed care contracts to

include appropriate language.") Other

letters express unhappiness about the

performance of insurers with which up&up

contracted to supply patients to the

hospitals. For example, the termination

letter from Upstate Carolina Medical

Center complained that some insurers,

instead of providing patients with

incentives to use the Medical Center,

were penalizing them for doing so and

refusing to pay in full on the ground

that the patients had gone "out of

network." None of this helps First

Health, let alone establishes enough

confusion to go forward. Some confusion

and misunderstanding are inevitable in

any business relation. The Lanham Act

deals only with confusion that exceeds

the norm in the human condition, see

Reed-Union Corp. v. Turtle Wax, Inc., 77

F.3d 909 (7th Cir. 1996), and First

Health has not made any effort to measure

the normal level of misunderstanding in

this business.

 Lack of actual confusion is irrelevant,

First Health insists, because (a) up&up’s

statements were "actually false" rather

than just misleading, and (b) it seeks

prospective relief in addition to

damages. For reasons we have already

given the use of "ppo" by a non-directed

network is not "actually false." But

First Health’s argument also is incorrect

as a matter of law. See B. Sanfield, Inc.

v. Finlay Fine Jewelry Corp., 258 F.3d

578 (7th Cir. 2001). Section 43(a) (1)(B)
offers relief only to one who "is or is

likely to be damaged by" the

misrepresentation. Proof of likely

confusion is essential to show injury--

actual or potential--without which there

is not even a case or controversy.

 The district judge concluded, and we

agree, that as far as this record shows

First Health never lost the business of a

single hospital because up&up’s use of

"ppo" confused that hospital. First Health

did lose to up&up the business of the

Government Employees Hospital

Association, Inc. (geha) network, but it

does not attribute this to any confusion

on geha’s part. First Health concedes that

geha understood completely the difference

between First Health’s and up&up’s

business models. Instead First Health

says that it lost geha’s business because

up&up had grown, as a result of its misuse

of "ppo," to a size where geha found it a

useful business partner. geha then called

for bids on terms that were better suited

to up&up than to First Health (which

declined to submit a bid on the terms geha

prescribed). That theory of liability is

divorced from any effort to prevent

misleading advertising; it amounts to an

effort to deprive hospitals, insurers,

and consumers of the efficiencies made

available by economies of scale.

 No rule of either state or federal law

entitles a competitor to damages from its

rival because of scattered contractual

disputes between the rival and its

customers (for example, the complaint

made by Columbia Healthcare that up&up had

not done enough to ensure that insurers

would steer patients to its facilities).

If up&up does not keep its promises, it

will lose business and may have to pay

damages. Suits by rivals are not

necessary for deterrence but could be

used to harass a competitor and stifle

the competitive process. More, it is

integral to First Health’s theory that

problems such as those at Columbia

Healthcare are uncommon; up&up has been

growing, not shrinking as trading

partners bail out. (Growth is, after all,

the method by which up&up snared geha’s

business.) This entire suit strikes us as

one designed to hamstring a competitor

whose success reflects its ability to

please its trading partners. If the

vocabulary of a business such as up&up is

to be revised, that is a job for
legislatures and regulatory agencies,

rather than for judges and juries in

suits under the Lanham Act and state

consumer-fraud statutes.

 First Health’s remaining contentions,

and theories of liability, do not require

separate discussion.

Affirmed