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It's hard to say w/o knowing the specifics, even then I'm not an expert but it's a subject I have done some peanut gallery research on. Offhand I would suggest checking into "territoriality" and how it may apply here. Is the person really doing nothing with the domain? Is it just a parked page? If there's any developed web property on that domain they may be within their rights to keep it.
Also they would be the holder of record before the trademark filing, and you'd probably have to make a significant investment into the building of the brand under the trademark and on the .net.. seems risky when there's no guarantee you would get the .com, also you would need to consider the purchase of the .com, while not absolute proof, does hint that you were aware the .com was held by another party prior.
I don't see it as being cut and dry. Have you tried to contact this person and buy it outright? Might be cheaper than lawyers. A good trademark lawyer is going to want around $3k just to give a professional opinion.
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