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Im not a lawyer. But i think selling a subscription service for something explicitly marketed with pics like mario drinking beer, is very different from just drawing it. They're making money with these drawings, and also damaging the brands.
Obviously they can't use trademarked stuff in the marketing but the model being able to produce trademarked characters isn't meaningfully different from Photoshop or internet browsers dreaded by NTF-fans feature "right-click save as" unless we consider the model to be agentic.
I wouldn't consider the model agentic, but it seems meaningful that every other AI image generator specifically blocks this kind of stuff, whereas this one not only allows it, but seems to encourage it, with a sort of "wink wink, nudge nudge, there are no rules!" marketing. And in fact it still has rules, lots of them, it's just this one rule that it bypasses. So it seems like they intentionally built a tool that has "trademark violation" as its main use case. If nothing else, they're distributing images that violate trademark, since all those images come off of their web servers.
So is every cloud service.
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It seems incredibly likely that after the cease and desist goes out later this week, Grok is neutered, but in the meantime everyone has heard about Grok.
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