IMPRESSION I, INC. Opinion of the Court is. The common law's tolerance of a certain degree of confusion on the part of consumers followed from the very fact that in cases like this one an originally descriptive term was selected to be used as a mark, not to mention the undesirability of allowing anyone to obtain a complete monopoly on use of a descriptive term simply by grabbing it first. Canal Co. v. Clark, 13 Wall., at 323-324, 327. The Lanham Act adopts a similar leniency, there being no indication that the statute was meant to deprive commercial speakers of the ordinary utility of descriptive words. "If any confusion results, that is a risk the plaintiff accepted when it decided to identify its product with a mark that uses a well known descriptive phrase." Cosmetically Sealed Industries, Inc. v. Chesebrough-Pond's USA Co., 125 F. 3d, at 30. See also Park 'N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U. S. 189, 201 (1985) (noting safeguards in Lanham Act to prevent commercial monopolization of language); Car-Freshner Corp. v. S. C. Johnson & Son, Inc., 70 F. 3d 267, 269 (CA2 1995) (noting importance of "protect[ing] the right of society at large to use words or images in their primary descriptive sense").5 This right to describe is the reason that descriptive terms qualify for registration as trademarks only after taking on secondary meaning as "distinctive of the applicant's goods," 15 U. S. C. § 1052(f), with the registrant getting an exclusive right not in the original, descriptive sense, but only in the secondary one associated with the markholder's goods, 2 McCarthy, supra, § 11:45, p. 11–90 ("The only aspect of the mark which is given legal protection is that penumbra or fringe of secondary meaning which surrounds the old descriptive word"). 5 See also Hearings 72 (testimony of Wallace Martin, Chairman, American Bar Association Committee on Trade-Mark Legislation) ("Everybody has got a right to the use of the English language and has got a right to assume that nobody is going to take that English language away from Opinion of the Court While we thus recognize that mere risk of confusion will not rule out fair use, we think it would be improvident to go further in this case, for deciding anything more would take us beyond the Ninth Circuit's consideration of the subject. It suffices to realize that our holding that fair use can occur along with some degree of confusion does not foreclose the relevance of the extent of any likely consumer confusion in assessing whether a defendant's use is objectively fair. Two Courts of Appeals have found it relevant to consider such scope, and commentators and amici here have urged us to say that the degree of likely consumer confusion bears not only on the fairness of using a term, but even on the further question whether an originally descriptive term has become so identified as a mark that a defendant's use of it cannot realistically be called descriptive. See Shakespeare Co. v. Silstar Corp., 110 F. 3d, at 243 ("[T]o the degree that confusion is likely, a use is less likely to be found fair . . .” (emphasis deleted)); Sunmark, Inc. v. Ocean Spray Cranberries, Inc., 64 F. 3d, at 1059; Restatement § 28; Brief for American Intellectual Property Law Association as Amicus Curiae 13-18; Brief for Private Label Manufacturers Association as Amicus Curiae 16-17; Brief for Society of Permanent Cosmetic Professionals et al. as Amici Curiae 8-11. Since we do not rule out the pertinence of the degree of consumer confusion under the fair use defense, we likewise do not pass upon the position of the United States, as amicus, that the "used fairly" requirement in §1115(b)(4) demands only that the descriptive term describe the goods accurately. Tr. of Oral Arg. 17. Accuracy of course has to be a consideration in assessing fair use, but the proceedings in this case so far raise no occasion to evaluate some other concerns that courts might pick as relevant, quite apart from attention to confusion. The Restatement raises possibilities like commercial justification and the strength of the plaintiff's mark. Restatement § 28. As to them, it is enough to say here that the door is not closed. IMPRESSION I, INC. Opinion of the Court III In sum, a plaintiff claiming infringement of an incontestable mark must show likelihood of consumer confusion as part of the prima facie case, 15 U. S. C. § 1115(b), while the defendant has no independent burden to negate the likelihood of any confusion in raising the affirmative defense that a term is used descriptively, not as a mark, fairly, and in good faith, § 1115(b)(4). Because we read the Court of Appeals as requiring KP to shoulder a burden on the issue of confusion, we vacate the judgment and remand the case for further proceedings consistent with this opinion.6 It is so ordered. 6 The record indicates that on remand the courts should direct their attention in particular to certain factual issues bearing on the fair use defense, properly applied. The District Court said that Lasting's motion for summary adjudication conceded that KP used "microcolor" descriptively and not as a mark. Case No. SA CV 00-276-GLT (EEx), at 8, App. to Pet. for Cert. 29a. We think it is arguable that Lasting made those concessions only as to KP's use of "microcolor" on bottles and flyers in the early 1990's, not as to the stylized version of "microcolor" that appeared in KP's 1999 brochure. See Opposition to Motion for Summary Judgment/ Adjudication in Case No. SA CV 00-276-GLT (EEx) (CD Cal.), pp. 18–19; Appellants' Opening Brief in No. 01-56055 (CA9), pp. 31-32. We also note that the fair use analysis of KP's employment of the stylized version of "microcolor" on its brochure may differ from that of its use of the term on the bottles and flyers. Syllabus KOWALSKI, JUDGE, 26TH JUDICIAL CIRCUIT COURT OF MICHIGAN, ET AL. v. TESMER ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No. 03-407. Argued October 4, 2004-Decided December 13, 2004 After Michigan's Constitution was amended to require that an appeal by an accused pleading guilty or nolo contendere be by leave of the court, several state judges denied appointed appellate counsel to indigents pleading guilty, and the Michigan Legislature subsequently codified this practice. The two attorney respondents joined three indigent criminal defendants in filing suit in Federal District Court, alleging that the practice denies indigents their federal due process and equal protection rights. The District Court held the practice and statute unconstitutional, but a Sixth Circuit panel reversed, holding that Younger v. Harris, 401 U. S. 37, abstention barred the indigents' suit, but that the attorneys had third-party standing to assert the indigents' rights; and that the statute was constitutional. On rehearing, the en banc Sixth Circuit agreed on standing but found the statute unconstitutional. Held: The attorneys lack third-party standing to assert the rights of Michigan indigent defendants denied appellate counsel. The Court assumes that the attorneys have satisfied Article III's standing requirement and thus addresses only whether they have standing to raise the rights of others. In deciding whether to grant third-party standing, this Court asks whether the party asserting the right has a "close" relationship with the person who possesses the right, and whether there is a “hindrance" to the possessor's ability to protect his own interests. Powers v. Ohio, 499 U. S. 400, 411. The attorneys here claim standing based on a future attorney-client relationship with as yet unascertained Michigan criminal defendants who will request, but be denied, appellate counsel under the statute. In two cases in which this Court found an attorneyclient relationship sufficient to confer third-party standing-Caplin & Drysdale, Chartered v. United States, 491 U. S. 617, and Department of Labor v. Triplett, 494 U. S. 715-the attorneys invoked known clients' rights, not those of the hypothetical clients asserted here. And Department of Labor v. Triplett-in which an attorney disciplined by his state bar for accepting a fee prohibited by the Black Lung Benefits Act of 1972 was held to have third-party standing to invoke claimants' due process rights to challenge the fee restriction that resulted in his punishment-falls within the class of cases allowing "standing to litigate Syllabus the rights of third parties when enforc[ing] the challenged restriction against the litigant would result indirectly in the violation of third parties' rights," Warth v. Seldin, 422 U. S. 490, 510. The attorneys here do not have a "close relationship" with their alleged "clients"; indeed, they have no relationship at all. Nor have they demonstrated any "hindrance" to the indigents' advancing their own constitutional rights against the Michigan scheme. An indigent may seek leave to challenge the denial of appellate counsel in state court and then may seek a writ of certiorari in this Court; and both state and federal collateral review exist beyond that. The attorneys' hypothesis that, without counsel, such avenues are effectively foreclosed was disproved in the Michigan courts and this Court, where pro se indigents have pursued them. On a more fundamental level, if an attorney is all that the indigents need to perfect their challenge in state court and beyond, one wonders why these attorneys did not attend state court and assist them. The fair inference is that they did not want the state process to take its course, but wanted a federal court to short circuit the State's adjudication of the constitutional question. Here, the indigents were appropriately dismissed under Younger because they had ample opportunities to raise their constitutional challenge in their ongoing state proceedings. An unwillingness to allow the Younger principle to be thus circumvented is an additional reason to deny the attorneys third-party standing. Pp. 128-134. 333 F.3d 683, reversed and remanded. REHNQUIST, C. J., delivered the opinion of the Court, in which O'CONNOR, SCALIA, KENNEDY, THOMAS, and BREYER, JJ., joined. THOMAS, J., filed a concurring opinion, post, p. 134. GINSBURG, J., filed a dissenting opinion, in which STEVENS and SOUTER, JJ., joined, post, p. 136. Thomas L. Casey, Solicitor General of Michigan, argued the cause for petitioners. With him on the briefs was Michael A. Cox, Attorney General. Judy E. Bregman filed briefs for respondent Kolenda in support of petitioners under this Court's Rule 12.6. David A. Moran argued the cause for respondents Tesmer et al. With him on the briefs were Michael J. Steinberg, Kary L. Moss, Mark Granzotto, and Steven R. Shapiro.* *Briefs of amici curiae urging reversal were filed for the State of Iowa et al. by Thomas J. Miller, Attorney General of Iowa, Douglas R. Marek, Deputy Attorney General, Darrel Mullins, Assistant Attorney General, |